I. SCOPE—PURPOSE—CONSTRUCTION.
RULE 1. SCOPE AND DEFINITIONS
(a) Courts of Record. These rules govern the procedure in all criminal proceedings conducted in all Tennessee courts of record.
(b) General Sessions Court. These rules govern the procedure in the general sessions courts in the following instances:
(1) the institution of criminal proceedings pursuant to Rules 3, 3.5, and 4;
(2) the disposition of criminal charges pursuant to Rule 5;
(3) preliminary examinations pursuant to Rule 5.1;
(4) subpoena pursuant to Rule 17;
(5) venue pursuant to Rule 18;
(6) search and seizure pursuant to Rule 41;
(7) assignment of counsel pursuant to Rule 44;
(8) the use of electronic audio-visual equipment to conduct initial appearances pursuant to Rule 43;
(9) the time computations for setting and the process for continuing preliminary examinations pursuant to Rule 45; and
(10) any other situation where the context clearly indicates applicability.
(c) Juvenile Courts. These rules do not apply in juvenile courts except when an adult is charged and the context clearly requires the application of the rule.
(d) Other Inferior Tribunals. These rules apply in other inferior tribunals when the context clearly so indicates.
(e) Definitions. As used in these rules the following terms have the designated meanings:
(1) Demurrer, Motion, etc. The words "demurrer," "motion," "motion to quash," "plea in abatement," "plea in bar," or words to the same effect in any Tennessee statute are construed to mean the motion raising a defense or objection provided in Rule 12.
(2) Law. "Law" includes statutes, codifications contained in Tennessee Code Annotated, and published judicial decisions.
(3) Magistrate. “Magistrate” includes all judges of courts of record in the state but is primarily intended to mean judges of courts of general sessions. It also includes judicial commissioners and justices of the peace when they perform any of the functions contemplated by these rules.
(4) Person. "Person" includes an individual, corporation, limited liability company, limited liability partnership, firm, company, or association.
(5) Oath. "Oath" includes oaths and affirmations.
Advisory Commission Comment. These rules apply in cases which are clearly criminal in nature, including both misdemeanors and felonies. Procedures in purely juvenile and municipal courts are not covered. The term general sessions court, as used in these rules, includes all courts exercising the jurisdiction of a general sessions court in state criminal procedures, including: (1) municipal courts having such jurisdiction by special legislative enactment; (2) special courts of multiple functions that include some jurisdiction in state criminal cases the same as that exercised by general sessions courts; and (3) justices of the peace, to the extent that they may be permitted in some counties to perform any of the functions covered by these rules. In summary, the purpose of the commission was to formulate rules of practice in those state criminal cases presently considered to be state criminal procedures and now covered by rules serving the purposes of the ones promulgated herein.
These rules are not completely comprehensive. For example, they do not deal directly with pretrial release. It is intended that these rules be applied in every instance in which they address the procedure involved. If they do not expressly or by clear implication relate to the procedure in question, then existing law is to be applied.
These rules take precedence over preexisting statutes and case law which are in conflict with them, but statutes passed subsequent to their adoption which conflict with these rules shall control. These committee comments were not as such adopted with the rules. They have been periodically revised by the advisory commission and published with the rules subsequent to the general assembly's adoption of the resolution approving them. The purpose of these comments is to aid in the understanding and application of the rules; but it must be made clear that the committee comments are not a part of the rules and are not binding upon the courts.
Advisory Commission Comment [2006]. In 2006, the rules were updated and reformatted to make them more easily understood. The new format was based largely on a similar undertaking to update and reformat the Federal Rules of Criminal Procedure. The advisory commission comments also were extensively revised to update citations to particular parts of these rules, to remove obsolete language, and to make the comments more comprehensible. In revising the comments, the commission consolidated the original comments with the subsequent comments added over the years, as the rules were amended. Following the 2006 revisions, new advisory commission comments will be added as individual rules are amended. Where such new comments are added, the new comments are intended to supersede the older comments only to the extent that they are in conflict. However, the presence of both comments is designed to make alterations more readily apparent.
In the event a particular case involves application of a rule as it existed prior to the reformatting and updating of the rules in 2006, please refer to a historical volume of the rules. A copy of the rules and comments, as they existed just prior to the revisions in 2006, may also be found on the website of the Tennessee Supreme Court.
Advisory Commission Comments [2007]. The comments to Rule 5 cross-reference the time for setting the preliminary hearing to the time computation provisions of Rule 45. However, Rule 45 does not explicitly apply to general sessions courts by its omission from Rule 1. The 2007 amendment to Rule 1(b)(9) corrects this omission but only concerning the time for setting, and process for continuing, the preliminary hearing once set. There is no intent to impact the requirements of Rule 5(a)(1) dictating that, with certain exceptions, an arrested person must be “taken without unnecessary delay before the nearest appropriate magistrate.” As a result of the 2007 amendment adopting a new (b)(9), the then-existing (b)(9) was renumbered as (b)(10).
The amendment to Rule 1(e)(3) adds “judicial commissioners” to the definition of a magistrate. This alteration makes the rule appropriately consistent with Tenn. Code Ann. §40-5-102 as it relates to courts which exercise jurisdiction at the initial stages of the criminal process as Rules 4 and 5 contemplate.
RULE 2. PURPOSE AND CONSTRUCTION
These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure:
(a) simplicity in procedure;
(b) fairness in administration; and
(c) the elimination of:
(1) unjustifiable expense and delay; and
(2) unnecessary claims on the time of jurors.
Advisory Commission Comment. This rule conforms to Rule 2 of the Federal Rules of Criminal Procedure and is a clear statement of the intention of the commission.
Subdivision (c)(2) is designed to stress that the efficient use of jurors’ time is a public interest that courts should consider in construing the Tennessee Rules of Criminal Procedure.
II. PRELIMINARY PROCEEDINGS
RULE 3. THE AFFIDAVIT OF COMPLAINT
The affidavit of complaint is a statement alleging that a person has committed an offense. It must:
(a) be in writing;
(b) be made on oath before a magistrate or a neutral and detached court clerk authorized by Rule 4 to make a probable cause determination; and
(c) allege the essential facts constituting the offense charged.
Advisory Commission Comment. This rule governs what must be done to secure the issuance of an arrest warrant. Under our statutory scheme, per T.C.A. § 40-6-214, clerks of courts of general sessions and their sworn deputies have jurisdiction and authority (concurrent with that of their judges) to issue arrest warrants. It is important that any clerk issuing an arrest warrant know and fully appreciate the legal significance of the fact that it is a judicial function which is being performed. The validity of the warrant depends upon the making of a probable cause determination; a warrant must never be issued as a mere ministerial act done simply upon application. Moreover, a valid warrant can be issued only by one who is neutral and detached and capable of making a probable cause determination, Shadwick v. City of Tampa, 407 U.S. 345 (1972), based upon an adequate showing of probable cause, Aguilar v. Texas, 378 U.S. 108 (1964) [overruled by Illinois v. Gates, 462 U.S. 213 (1983)]. One who is paid a fee for the issuance of a warrant, but nothing where such issuance is refused, is not a neutral and detached magistrate who can validly issue warrants, Connally v. Georgia, 429 U.S. 245 (1977).
It must be emphasized that before a valid arrest warrant can issue, the judicial officer issuing the warrant must be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. Whiteley v. Warden, 401 U.S. 560 (1971). A factually sufficient basis for the probable cause judgment must appear within the affidavit of complaint. If hearsay evidence is relied upon, the basis for the credibility of both the informant and the informant's information must also appear in the affidavit. Spinelli v. U.S., 393 U.S. 410 (1969) [overruled by Illinois v. Gates, 462 U.S. 213 (1983)]. The comparable federal rule calls this affidavit the "complaint." Since that technical term is used differently in our civil procedure, and also to further emphasize to the one issuing an arrest warrant the necessity for first having in hand a detailed complaint reduced to writing and sworn to, the commission adopted "affidavit of complaint" to describe the document upon which the issuance of the arrest warrant is based.
RULES 3.1—3.4 [RESERVED]
(a) Use of Citations. The use of citations in misdemeanor arrests is as provided by law.
(b) Reference to Citations. All references in these rules to citations mean citations issued pursuant to law.
Advisory Commission Comment. Use of the criminal citation in misdemeanor cases where no danger to the public interest will result is a procedure in keeping with the expressed goal of securing simplicity in procedure and eliminating unjustified expense and delay. The original substantive content of this rule was deleted in 1988 because T.C.A. § 40-7-118 now provides a comprehensive treatment of citations and mandates their use in some instances.
RULE 4. ARREST WARRANT OR SUMMONS ON A COMPLAINT
(a) Issuance of Warrant or Summons. If the affidavit of complaint and any supporting affidavits filed with it establish that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the magistrate or clerk shall issue an arrest warrant to an officer authorized by law to execute it or shall issue a criminal summons for the appearance of the defendant. More than one warrant or criminal summons may issue on the same complaint.
(1) District Attorney General’s Choice. The district attorney general may direct the clerk to issue either a criminal summons or a warrant.
(2) Examination Under Oath. Before ruling on a request for a warrant, the magistrate or clerk may examine under oath the complainant and any witnesses the complainant produces.
(3) Record of Issuance. The general sessions court clerk shall promptly record in a docket book the issuance of every warrant and summons in the county.
(4) Failure to Appear for Summons. A warrant shall issue for a defendant who fails to appear in response to a criminal summons.
(b) Evidence of Probable Cause for Warrant or Summons. The finding of probable cause shall be based on evidence which may be hearsay in whole or in part provided there is a substantial basis to believe:
(1) the source of the hearsay is credible; and
(2) there is a factual basis for the information furnished.
(c) Form.
(1) Warrant. The arrest warrant shall:
(A) be signed by the magistrate or clerk;
(B) contain the name of the defendant or, if this name is unknown, any name or description by which the defendant can be identified with reasonable certainty;
(C) indicate the county in which the warrant is issued;
(D) describe the offense charged in the affidavit of complaint; and
(E) order that the defendant be arrested and brought before the nearest appropriate magistrate in the county of arrest.
(2) Summons. The criminal summons shall be in the same form as the arrest warrant except that it orders the defendant to appear before a magistrate at a stated time and place.
(d) Bail When Warrant Issued in One County and Executed in Another. A defendant arrested in one county on a warrant issued in another county for the commission of an offense for which the maximum punishment is imprisonment for ten (10) years or less is entitled to be admitted to bail in the county of arrest by the same officials and in the same manner as if arrested in the county issuing the warrant, subject to the following provisions:
(1) the appropriate clerk or magistrate shall determine the amount of bail and state it on the face of the warrant; and
(2) the sheriff or deputy sheriff of the county in which the arrest is made shall transmit the undertaking of bail to the sheriff of the county from which the warrant issued, who shall return it to the court as provided in T.C.A. § 40-11-106.
(e) Execution or Service; Return.
(1) By Whom. The arrest warrant shall be executed by an officer authorized by law. The criminal summons shall be served by a person authorized to serve a summons in a civil action.
(2) Territorial Limits. The arrest warrant or criminal summons may be executed or served in any Tennessee county.
(3) Manner.
(A) Warrant. An arrest warrant is executed by arresting the defendant. The arresting officer need not have the warrant in the officer's possession at the time of the arrest, but on request shall show the warrant to the defendant as soon as possible. If the arresting officer does not have possession of the warrant at the time of the arrest, the officer shall inform the defendant of the offense charged and that a warrant has been issued.
(B) Summons. A criminal summons is served in the same manner as a summons in a civil action.
(4) Return; Cancellation; Reissuance.
(A) Return. The officer executing a warrant shall return it to the magistrate or clerk or other officer before whom the defendant is brought pursuant to Rule 5. On or before the return day, the person to whom a criminal summons is delivered for service shall make a return to the magistrate or clerk before whom the summons is returnable.
(B) Cancellation of Unexecuted Warrant. At the district attorney general’s request, any unexecuted warrant shall be returned to the magistrate or clerk by whom it was issued, who shall cancel it.
(C) Re-Execution or Renewed Service of Warrant or Summons. At the district attorney general’s request made while the affidavit of complaint is pending, the magistrate or clerk may deliver to any authorized person for execution or service the original or a duplicate of:
(i) a warrant, returned unexecuted and not cancelled; or
(ii) a summons returned unserved.
Advisory Commission Comment. Note that the affidavit of complaint may be buttressed by additional affidavit(s) and that the magistrate or clerk may also examine under oath the complainant and any other witnesses.
A criminal summons may be issued instead of an arrest warrant; when a clerk is performing this judicial function, the district attorney general is empowered to direct the clerk whether to issue a warrant or a criminal summons upon a finding of probable cause.
Section (a)(3) requires that a docket book be kept in which every warrant and summons issued in a given county is recorded. This rule is meant to require any person issuing such a warrant or criminal summons who is not the clerk, to communicate this fact to the clerk of the court of general sessions and to see to it that the issuance is properly recorded. Rigid compliance with this rule is very important to the proper administration of criminal justice, and thus the rule is meant to be mandatory in nature.
Under section (b) probable cause for the issuance of arrest warrants and criminal summonses may be based in whole or in part upon credible hearsay. A different rule applies to the preliminary examination structured under Rule 5.1, in which the "evidence may not be inadmissible hearsay except documentary proof of ownership and written reports of expert witnesses."
The form of the arrest warrant, as set out in Rule 4(c)(1), makes no distinction between warrants issued for persons not yet arrested and those warrants issued for persons already arrested without a warrant. Such a warrant serves a dual function: first, as the authority for an arrest (where an arrest has not already been lawfully made) and, secondly, as a statement of the charge which the accused is called upon to answer. The commission did not recommend two separate warrant forms, one for use where the accused had not yet been arrested, and the second to merely state the charge against one already under arrest, because it is more utilitarian to have only the one form. The command to arrest is obviously surplusage where the warrant is directed against one already in custody; but a warrant in such cases still serves as the official charging instrument, issued after a judicial finding of probable cause, and gives notice of the charge which must be answered.
Rule 4 was substantially derived from the corresponding federal rule and § 40-6-202 of the Law Revision Commission's proposed code.
Note that the rule provides specifically for the reissuance of unexecuted complaints and summonses.
Wherever the words "magistrate" and "clerk" appear in Rule 4, they are to be understood as being qualified by the words "who is neutral and detached and who is capable of the probable cause determination required by this rule." See Shadwick v. City of Tampa, 407 U.S. 345 (1972).
See T.C.A. § 39-15-101 which sets limits on the issuance of arrest warrants for violation of support orders.
Advisory Commission Comment [2007].
Tenn. Code Ann. §§ 40-6-205 and 40-6-215 require that a summons be issued instead of a warrant in certain circumstances.
RULE 5. INITIAL APPEARANCE BEFORE MAGISTRATE
(a) In General.
(1) Appearance Upon an Arrest. Any person arrested–except upon a capias pursuant to an indictment or presentment–shall be taken without unnecessary delay before the nearest appropriate magistrate of:
(A) the county from which the arrest warrant issued; or
(B) the county in which the alleged offense occurred if the arrest was made without a warrant, unless a citation is issued pursuant to Rule 3.5.
(2) Affidavit of Complaint When No Arrest Warrant. An affidavit of complaint shall be filed promptly when a person, arrested without a warrant, is brought before a magistrate.
(3) Governing Rules. The magistrate shall proceed in accordance with this rule when an arrested person initially appears before the magistrate.
(b) Small Offenses Triable by Magistrate.
(1) Advice and Plea Entry for Small Offense. When the offense charged is a small offense triable by the magistrate, without regard to the plea, the magistrate shall advise the defendant of the charge, and determine defendant's plea.
(2) Judgment and Sentence Upon Plea. When the defendant pleads guilty to a small offense, the magistrate may hear relevant evidence and sentence the defendant to pay a fine.
(3) Trial. When the defendant pleads not guilty to a small offense, the case shall be set for trial at some future day and the defendant's pretrial release dealt with under the provisions of applicable law, unless the defendant agrees to an immediate trial.
(4) Appeal. A defendant who is convicted of a small offense may appeal as a matter of right to the Circuit or Criminal Court for a trial de novo without a jury.
(c) Other Misdemeanors.
(1) Upon Plea of Guilty. If the offense charged is a misdemeanor, but of greater magnitude than a small offense, the magistrate shall inquire how the defendant pleads to the charge. If the plea is guilty, the plea shall be reduced to writing. The following rules shall then apply:
(A) Advice to Defendant. The magistrate shall advise the defendant of the right to a jury trial and to be prosecuted only on an indictment or presentment.
(B) Set Preliminary Examination Unless Not Required. The magistrate shall schedule a preliminary examination to be held within ten days if the defendant remains in custody and within thirty days if released from custody, unless:
(i) the defendant expressly waives the right to a jury trial and to a prosecution based only on an indictment or presentment; or
(ii) a preliminary examination is not required under Rule 5(e) below.
(C) Waiver.
(i) Of Preliminary Examination. The magistrate may bind the defendant over to the grand jury if the defendant waives a preliminary examination on a misdemeanor.
(ii) Of Preliminary Examination and Grand Jury. If the defendant offers to waive the right to a grand jury investigation and a trial by jury, the court may permit it if the district attorney general or the district attorney general’s representative does not then object. In the event of such waiver, the magistrate shall hear the misdemeanor case on the guilty plea and determine the sentence. The defendant may appeal judgment on a plea of guilty to a misdemeanor after waiver of a grand jury investigation and jury trial, but only as to the sentence imposed.
(2) Upon Plea of Not Guilty.
(A) Set Preliminary Examination. Unless the defendant expressly waives the right to a preliminary examination, when the defendant pleads not guilty the magistrate shall schedule a preliminary examination to be held within ten days if the defendant remains in custody and within thirty days if released.
(B) When Preliminary Examination Waived. The magistrate may bind the case over to the grand jury if the defendant waives in writing the preliminary examination.
(C) When Preliminary Examination, Grand Jury, and Jury Trial Waived; Appeal. If the defendant offers to waive in writing the right to a grand jury investigation and a trial by jury, and to submit the case to the general sessions court–and the district attorney general or the district attorney general’s representative does not object–the magistrate may accept the defendant’s written waiver and hear the misdemeanor case on the not guilty plea. The magistrate may enter judgment, including any fine or jail sentence prescribed by law for the misdemeanor. The state may not appeal from a judgment of acquittal. The defendant may appeal a guilty judgment or the sentence imposed, or both, to the circuit or criminal court for a trial de novo as provided by law.
(d) Felonies.
(1) Advice to Defendant. If the offense charged is a felony, the defendant shall not be called on to plead. The magistrate shall inform the defendant of:
(A) the charge and the contents of the affidavit of complaint;
(B) the right to counsel;
(C) the right to appointed counsel if indigent;
(D) the right to remain silent and give no statement;
(E) the fact that any statement given voluntarily may be used against the defendant;
(F) the general circumstances under which the defendant may obtain pretrial release; and
(G) the right to a preliminary examination.
(2) Preliminary Examination Waived. When the defendant waives preliminary examination, the magistrate shall promptly bind the defendant over to the grand jury.
(3) Schedule Preliminary Examination. When the defendant does not waive preliminary examination and when a preliminary examination is not rendered unnecessary under Rule 5(e), the magistrate shall schedule a preliminary examination within ten days if the defendant remains in custody and within thirty days if released.
(e) Indictment Before Preliminary Examination. Any defendant arrested prior to indictment or presentment for a misdemeanor or felony, except small offenses, is entitled to a preliminary hearing on request, whether or not the county grand jury is in session. If the defendant is indicted while the preliminary hearing is being continued (whether at the defendant or prosecutor’s request) or at any time before he or she has been afforded a preliminary hearing on a warrant, the defendant may dismiss the indictment on motion. No such motion to dismiss shall be granted after more than thirty days from the date of the defendant's arrest.
(f) Defendant’s Presence. The defendant’s presence at the initial appearance is governed by Rule 43.
Advisory Commission Comment. As far as the actions before a magistrate exercising the jurisdiction of a general sessions court are concerned, Rule 5 substantially embodies existing law as to jurisdiction and procedure. This rule is intended to provide comprehensive guidance for those exercising this jurisdiction. Small offenses are those which carry a maximum fine of fifty dollars and for which no imprisonment may be inflicted. T.C.A. § 40-408 [now repealed]. It should be noted in connection with subdivision (b), dealing with small offenses triable by a magistrate, that there is no appeal from the judgment in a case in which a guilty plea is entered. Where trial is held for a small offense upon a plea of not guilty and a conviction results, there is a right to a trial de novo upon appeal, but there is no right to a jury upon the new trial (there being no such right as to small offenses in the first instance). Further, where the defendant in serious misdemeanor cases waives the right to a jury trial, that waiver before the magistrate carries over into the criminal or circuit court and attaches to the trial de novo on appeal unless the defendant demands a jury as part of the appeal notice as required by § 27-5-108. See State v. Jarnigan, 958 S.W.2d 135 (Tenn. 1998). The rights in all (except small) offenses to be proceeded against only by indictment or presentment and to a trial by jury are grounded upon the provisions of Art. 1, Secs. 6 and 14, Constitution of Tennessee.
The preliminary examination referred to in this rule is the proceeding formerly called a preliminary hearing. It must be scheduled within ten days if the accused is in custody, and within thirty days if the accused is on bond. See Rule 45(a), dealing with the computation of time.
It is important to note that while the Constitution and the Rules vest the right to trial by jury in the accused, this right cannot be waived under this rule in the face of an objection by the district attorney general or his or her representative. This provision acts as a safeguard against the possibility that an accused might be permitted to enter a guilty plea to a lesser included offense and effectively bar prosecution for a more serious crime. Price v. Georgia, 398 U.S. 323 (1970); Waller v. Florida, 397 U.S. 387 (1970). Hence, in effect the state now has a right to a trial by jury, if the district attorney general or his or her representative asserts the right by objecting to the waiver by the defendant. Note that the rule does not require an affirmative act on behalf of the state before an accused can effectively waive the right, but simply provides that it cannot be done in the face of an objection. This wording by the commission was deliberate, because it is recognized that many general sessions courts must sometimes operate without the presence of the district attorney general or his or her representative. Nevertheless, in order to exercise an objection and thus protect the state's position, the district attorney general personally or by representative will need to know of the proceeding and to enter an objection. The court should construe the words "or the district attorney general's representative" to include anyone connected with law enforcement who reports to the court that the district attorney general or one of his or her assistants has requested that the objection be made.
Under Rule 5(d), covering a felony charge, it is extremely important that the magistrate inform the accused in substantial compliance with this rule.
Rule 5(e) simply carries over into the Rules the same conditional right to a preliminary hearing now embodied in T.C.A. § 40-1131 [repealed]. It was not the intention of the commission to enlarge or diminish that conditional right; therefore, the body of case law which has been developed in connection with the statute retains its precedential value. Waugh v. State, 564 S.W.2d 654 (Tenn. 1978).
The commission's rationale, which was presented to the Supreme Court prior to the approval of these rules, is that the court has jurisdiction to enter a judgment calling for a fine in excess of fifty dollars, where provided by law and set by a jury. If the accused waives the right to have a jury set the fine and agrees that the judge set it, this act confers upon the court jurisdiction to set such a fine. An analogous situation arises each time a defendant waives a jury and permits a trial before a judge. In either instance the judge can exercise the full jurisdiction of the court because there has been a valid waiver of the right to have jury participation. Thus, under these rules, a judge can set a fine to the full limit of the appropriate penal statute, when a jury has been waived.
Rule 5(c)(1) and (2) conform the rule to T.C.A. § 40-4-112, which allows an appeal of the sentence even upon a plea of guilty.
This rule allows a de novo appeal "as provided by law" which contemplates a jury trial as provided by T.C.A. Section 27-3-131(a). Attorneys should be aware, however, that T.C.A. § 27-3-131(b) requires that the demand for a jury must be made at the time of filing an appeal.
These rules permit general sessions courts to use audio-visual technology to conduct initial appearances where a plea of not guilty is entered by the defendant. Nothing in paragraph (d) prohibits the prosecutor or defense counsel from being present and heard. In addition, paragraph (d) does not apply to preliminary examinations pursuant to Rule 5.1 nor misdemeanor trials. These amendments are substantially similar to Rule 5-303 of the New Mexico Rules of Criminal Procedure and Rule 10 of Hawaii Rules of Penal Procedure and reflect the growing need for the use of technology to expedite the processing of initial criminal proceedings and reduce the cost of such processing. The purposes for the Rules, which these amendments are intended to achieve, are set forth in Rule 2: "...to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay."
Advisory Commission Comments [2007]. Tenn. Code Ann. §40-1-109 requires a written guilty plea for misdemeanors. The amendment to subsection (c) conforms the rule to the statute.
RULE 5.1. PRELIMINARY EXAMINATION
(a) Procedures. The following rules apply to a preliminary examination:
(1) Evidence. The finding that an offense has been committed and that there is probable cause to believe that the defendant committed it shall be based on evidence which may not be inadmissible hearsay except documentary proof of ownership and written reports of expert witnesses. Rules excluding evidence acquired by unlawful means are applicable.
(2) Defendant’s Right to Present Evidence and Cross-Examine. The defendant may cross-examine witnesses against him or her and may introduce evidence.
(3) Content and Access to Record of Proceeding. The evidence of the witnesses does not have to be reduced to writing by the magistrate, or under the magistrate's direction, and signed by the respective witnesses; but the proceedings shall be preserved by electronic recording or its equivalent. If the defendant is subsequently indicted, such recording shall be made available to the defendant or defense counsel so they may listen to the recording in order to be apprised of the evidence introduced in the preliminary examination. Where the recording is no longer available or is substantially inaudible, the trial court shall order a new preliminary hearing upon motion of the defendant filed not more than 60 days following arraignment. The indictment shall not be dismissed while the new preliminary hearing is pending. If the magistrate conducting the new preliminary hearing determines that probable cause does not exist, the magistrate shall certify such finding to the trial court and the trial court shall then dismiss the indictment. The discharge of the defendant by the dismissal of the indictment in such circumstances does not preclude the state from instituting a subsequent prosecution for the same offense.
(b) When Probable Cause Found. When the magistrate at a preliminary examination determines from the evidence that an offense has been committed and there is probable cause to believe that the defendant committed it, the magistrate shall bind the defendant over to the grand jury and either release the defendant pursuant to applicable law or commit the defendant to jail by a written order.
(c) When Probable Cause Not Found. When the magistrate determines from the evidence that there is not sufficient proof to establish that an offense has been committed or probable cause that the defendant committed it, the magistrate shall discharge the defendant. The discharge of the defendant does not preclude the state from instituting a subsequent prosecution for the same offense. The recording of the preliminary hearing shall be made available to the defendant in the event the defendant is subsequently prosecuted for the same offense by indictment or presentment. The remedy for the failure to preserve the recording in this circumstance shall be as set forth in subsection (a)(3).
(d) Transfer of Records. At the conclusion of a proceeding where probable cause is found, the magistrate shall promptly transmit to the criminal court clerk all papers and records in the proceedings. When probable cause is not found, the magistrate shall return the records and papers to the general sessions court clerk.
Advisory Commission Comment. The subject of the preliminary examination, or preliminary hearing, has been the focus of a considerable amount of litigation in recent years. The purpose, scope, and quality of evidence to be admitted upon a preliminary hearing have likewise been the subjects of intense debate. Despite the language in McKeldin v. State, 516 S.W.2d 82 (Tenn. 1974), suggesting that this stage of the proceeding is a discovery procedure for the accused, it is the commission's position, to the contrary, that McKeldin does not convert the preliminary hearing into a "fishing expedition," with unlimited potential for discovery. The case holds that the preliminary hearing is a probable cause hearing, which can result in providing discovery to the defendant, an important byproduct of its probable cause function.
Discovery is specifically addressed elsewhere in these rules, and the rights of the accused and of the state clearly spelled out. As stated above, the preliminary examination is a probable cause hearing, and the scope of the proceeding is under the control of the magistrate in the exercise of a sound discretion. It is unnecessary for the magistrate to hear more of the state's proof than is necessary to establish probable cause, and the magistrate may terminate the hearing at any time that probable cause has been established and the accused has been afforded the opportunity to cross-examine the witnesses called by the state and to present defense proof reasonably tending to rebut probable cause. There is no right of the accused to call as witnesses all of the state's witnesses and question them. The magistrate may permit the accused to call witnesses summoned by the state, if in the exercise of a sound discretion the magistrate determines such testimony to be of use to the magistrate in determining probable cause, or the absence thereof. To repeat, the scope of the hearing is under the control of the magistrate, in the exercise of a sound discretion and governed by principles of fundamental fairness. The purpose of the hearing is to adjudicate the existence or absence of probable cause, and not to discover the state's case.
The quality of the evidence required is clear; it may not be inadmissible hearsay, except in those two instances deemed by the commission to be sufficient to warrant their being exceptions, i.e., documentary proof of ownership and written reports of expert witnesses.
Rule 5.1(a)(3) is drafted to make it clear that the constitutional right of the defendant to have access to a recording of the proceedings must be honored. See Britt v. North Carolina, 404 U.S. 226 (1971). There is no requirement that a written transcript of the proceedings be made; and certainly the requirement for an electronic recording can be waived, if knowingly and voluntarily done.
Advisory Commission Comments [2008]. The amendments provide remedies when the recording of a preliminary hearing is lost or damaged.
III. INDICTMENT AND INFORMATION
(a) Formation of the Grand Jury.
(1) Formation at a Regular Term. On the first day of each term of court at which a grand jury is required to be impaneled, the judge of the court authorized by law to charge the grand jury and to receive its report shall direct the names of all the qualified jurors in attendance for the criminal courts of the county to be written on separate slips of paper and placed in a box or other suitable receptacle and drawn out by the judge in open court. The foreperson and the twelve qualified jurors whose names are first drawn constitute the grand jury for the term and shall attend the court until dismissed by the judge or until the next term.
(2) Formation at a Special Term. The judge presiding at any special term of the court may impanel a grand jury in the same manner and of the same powers as at a regular term.
(3) Formation of Concurrent Grand Juries. When the expeditious administration of justice so requires, the court may likewise impanel a second grand jury to operate concurrently with the first.
(4) Oath of Grand Jurors. The following oath shall be administered to all members of the grand jury, including the foreperson:
You as members of the grand jury do solemnly swear (or affirm) that you will diligently inquire, and true presentment make, of all offenses given you in charge, or otherwise brought to your knowledge, committed or triable within this county; that you will keep secret the state's counsel, the other jurors' and your own; that you will present no person from hatred, malice, or ill will, nor leave any unpresented through fear, favor, or affection, or for any reward, or the promise or hope thereof, but that you will present the truth, the whole truth, and nothing but the truth, according to the best of your skill and understanding. So help you God.
(5) Charge to the Grand Jury. After the grand jury has been impaneled and sworn, the judge shall instruct it concerning its powers and duties and the relevant law.
(b) Vacancies on the Grand Jury.
(1) Vacancy as to Grand Juror. When any grand juror becomes unable to serve out the term or is excused on any ground, the court shall fill the vacancy from the original panel. If the court is unable to fill the vacancy from the original panel, it must do so from qualified persons selected in accordance with Rule 6(b)(2).
(2) Vacancy as Foreperson. When the foreperson of the grand jury is unable to serve or is relieved, the court shall appoint a new one according to Rule 6(g) until such time as the foreperson is able to serve or until expiration of his or her term.
(c) Disqualification of Grand Juror for Interest.
(1) Disqualification. No member of the grand jury shall be present during–or take part in–the consideration of a charge or the deliberation of the other grand jurors, if:
(A) the member is charged with an indictable offense;
(B) the member is a prosecutor;
(C) the offense was committed against the member’s person or property; or
(D) the member is related to the person charged or to the victim of the alleged crime by blood or marriage within the sixth degree, computed by the civil law.
(2) Filling Vacancy Created by Temporary Disqualification. When a grand juror is excluded because of interest and fewer than twelve grand jurors remain to investigate any matter, the court shall fill the vacancy according to Rule 6(b) only during such investigation.
(d) Powers of the Grand Jury. The grand jury has inquisitorial powers over–and has the authority to return a presentment–of all indictable or presentable offenses found to have been committed or to be triable within the county. At all proper hours, the grand jurors are entitled to free access to all county offices and buildings and to examine, without charge, all records and other papers of any county officers in any way connected with the grand jurors’ duties.
(e) Duties of the Grand Jury. It is the duty of the grand jury to:
(1) inquire into, consider, and act on all criminal cases submitted to it by the district attorney general;
(2) inquire into any report of a criminal offense brought to its attention by a member of the grand jury;
(3) inquire into the condition and management of prisons and other county buildings and institutions within the county;
(4) inquire into the condition of the county treasury;
(5) inquire into the correctness and sufficiency of county officers’ bonds;
(6) inquire into any state or local officers’ abuse of office; and
(7) report the results of its actions to the court.
(f) Individual Grand Juror's Duty to Inform. If a member of the grand jury knows or has reason to believe that an indictable public offense has been committed in the county, he or she shall inform the other jurors, who shall investigate it.
(g) Appointment, Qualifications, Term, Compensation, Vote, and Duties of Foreperson.
(1) Appointment of Foreperson. The judge of the court authorized by law to charge–and receive the report of–the grand jury shall appoint the grand jury foreperson. When concurrent grand juries are impaneled, the court shall appoint a foreperson for each grand jury.
(2) Qualifications of Foreperson. The foreperson shall possess all the qualifications of a juror.
(3) Duration of Appointment. The foreperson shall hold office and exercise powers for a term of two (2) years from appointment. In the discretion of the presiding judge, the foreperson may be removed, relieved, or excused from office for good cause at any time.
(4) Duties of Foreperson. The grand jury foreperson has the following duties:
(A) to assist and cooperate with the district attorney general in ferreting out crime, to the end that the laws may be faithfully enforced;
(B) out of term, to advise the district attorney general about law violations and to furnish names of witnesses, whom the district attorney general may, if he or she deems proper, order summoned to go before the grand jury at the next term;
(C) in term, (in addition to the district attorney general who also has such authority) to order the issuance of subpoenas for grand jury witnesses; and
(D) to vote with the grand jury, which vote counts toward the twelve necessary for the return of an indictment.
(5) Compensation. The county legislative body determines the foreperson’s compensation, which must not be less than ten dollars ($10.00) per day for each day the foreperson’s grand jury is actually in session. The foreperson’s compensation may not be diminished during the term of appointment. The foreperson shall receive no other compensation for these services. The foreperson’s compensation shall be paid out of the county treasury in the same manner as jurors are paid.
(h) Duties of District Attorney General.
(1) Attendance. When required by the grand jury, the district attorney general may appear before the grand jury for the purpose of giving legal advice, but shall not be present–nor shall any other officer or person other than the grand jurors be present–when the grand jurors vote on an indictment or presentment.
(2) Preparation of Indictments. The district attorney general shall promptly prepare indictments for the grand jury in all cases when a defendant has been bound over to answer a criminal charge or is in the sheriff’s custody.
(i) Duties of Clerks.
(1) Furnishing Information to District Attorney General. On the first day of the term, the clerk shall furnish the district attorney general with the names of the prosecutor, defendant, and witnesses in each case.
(2) Issuing Subpoenas for Witnesses. On application of the grand jury, the court clerk shall issue subpoenas for any witnesses the grand jury requires to give evidence before it.
(3) Issuing Process Between Terms. Between terms of court, when the district attorney general believes it necessary to secure the ends of justice and protect the interests of the state, he or she may direct the clerks to issue process to secure the attendance of witnesses before the grand juries on the first day of the succeeding term.
(j) Witnesses Before Grand Jury.
(1) Sending for Witnesses by Grand Jury. The grand jury shall send for witnesses whenever the grand jury or any member suspects that an indictable offense has been committed.
(2) Process for Grand Jury Witnesses. Process for grand jury witnesses shall be directed to the sheriff or other lawful officer, and may also be executed and returned by any officer the court appoints to assist the grand jury.
(3) Failure of Witnesses to Attend. Witnesses subpoenaed by the grand jury who fail to attend may be proceeded against as other defaulting witnesses.
(4) Oath of Grand Jury Witnesses. Witnesses summoned before the grand jury may be sworn by the clerk or foreperson. The foreperson of the grand jury may administer the oath to grand jury witnesses in all cases where the clerks of the criminal and circuit courts may administer such oaths. The person administering the oath shall indorse the fact on the subpoena, and sign his or her name to such endorsement.
(5) Compelling Witnesses to Testify. A person who refuses to testify before the grand jury may be compelled to do so by the court:
(A) on motion of the district attorney general; and
(B) on a grant of immunity from prosecution for any offense in relation to which the person has been ordered to testify.
(6) Immunity of Certain Witnesses from Prosecution. No witness shall be indicted for any offense in relation to which the district attorney general has compelled the witness to testify before the grand jury.
(7) Limited Detention of Grand Jury Witnesses. The district attorney general shall endeavor to detain witnesses only one (1) day for appearance before the grand jury.
(8) Limited Claim of Attendance of Witnesses Living Within Ten Miles. Witnesses who live within ten (10) miles of the court may claim only one (1) day's attendance before the grand jury, unless detained longer by court order.
(k) Secrecy of Proceedings; Exception.
(1) Grand Jury Proceedings Secret. Every member of the grand jury shall keep secret the proceedings of that body and the testimony given before it, except as provided in Rule 6(k)(2).
(2) Exception to Rule of Secrecy. The court may require a grand juror to reveal the testimony of a grand jury witness:
(A) to ascertain whether the grand jury testimony is consistent with that given by the witness before the court; or
(B) to disclose the grand jury testimony of any witness charged with perjury.
(l) Grand Jurors as Petit Jurors.
(1) Grand Jurors Serving as Petit Jurors. Except as provided in Rule 6(l)(2), the grand jurors may act as petit jurors in civil or criminal cases when not engaged in grand jury business.
(2) Grand Jurors Barred as Petit Jurors in Certain Cases. No grand juror may sit as a petit juror for any cause involving a defendant in any criminal cause heard by the grand jury of which he or she is a member.
Advisory Commission Comment. This rule substantially reflects existing law, including the provision allowing concurrent grand juries. The voting power of the grand jury foreperson is made explicit. The judge's charge to the grand jury "shall instruct it concerning its powers and duties and expound the law to it as the judge shall deem proper."
Witness immunity provided in Rule 6(j)(5) and (6) requires comment. The first provision provides that: "A person refusing to testify before the grand jury may be compelled to testify by the court on motion of the district attorney general and upon a grant of immunity from prosecution for any offense in relation to which the person has been ordered to testify." This rule is triggered by the refusal of a witness to testify before a grand jury.
The second says: "No witness shall be indicted for any offense in relation to which the district attorney general has compelled the witness to testify before the grand jury.” Note that the rule says "the district attorney general has compelled the witness to testify” rather than "has testified."
Rule 6(j)(5) carries the subtitle "Compelling Witnesses to Testify." It provides a tool whereby one can be required to give up an asserted Fifth Amendment right, but not until the witness is explicitly given a grant of immunity from prosecution (not just indictment, so one already indicted could be so compelled) for any offense in relation to which the witness has been ordered to testify.
Rule 6(j)(6) is subtitled "Immunity of Certain Witnesses from Prosecution" and expressly limits the immunity to indictment for offenses about which the witness was compelled to testify by the district attorney general. This rule grants immunity only to those witnesses compelled to testify by the district attorney general, or the district attorney general's assistant or agent, by virtue of subpoena or order of the judge. The commission does not desire to depart from the scope of the immunity given under T.C.A. § 40-1623 [now repealed], and the cases decided thereunder.
The commission views the immunity rules as being limited strictly to the instances addressed by them. Rule 6(j)(5) is triggered only where there is a Fifth Amendment or other refusal of a witness to testify and an explicit court order to do so; Rule 6(j)(6) is triggered only when the district attorney general compels the witness to testify.
T.C.A. §§ 40-12-104 – 40-12-107 provide a procedure designed to give citizens free access to the local grand jury. Under this statute, persons applying to testify before the grand jury are not immune from prosecution based upon or related to their testimony, except under express grant of immunity by the grand jury. The statute expressly states that it is supplemental to existing law.
RULE 7. INDICTMENTS, PRESENTMENTS, AND INFORMATIONS
(a) General Provision. The definition, form, use, return, endorsements, content, and procedure relating to indictments, presentments, and criminal informations are as provided by law.
(b) Amending Indictments, Presentments and Informations.
(1) With Defendant’s Consent. With the defendant’s consent, the court may amend an indictment, presentment, or information.
(2) Without Defendant’s Consent. Without the defendant's consent and before jeopardy attaches, the court may permit such an amendment if no additional or different offense is charged and no substantial right of the defendant is prejudiced.
(c) Bill of Particulars. On defendant’s motion, the court may direct the district attorney general to file a bill of particulars so as to adequately identify the offense charged.
Advisory Commission Comment. The criminal information has been used in state cases under the provisions of § 40-3-101, but because the Constitution of Tennessee, Art. 1, § 14, provides that no person shall be put to answer any criminal charge but by presentment, indictment or impeachment, its use is limited to those cases in which there is an agreement by the defendant to be bound by its use.
Subdivision (a) simply adopts the existing law, and leaves it subject to whatever changes and construction that may be made.
The first sentence of (b) deals with permissive amendments and follows existing statutory law per T.C.A. § 40-1713 [now repealed], while the second sentence permits some amendments in the face of the defendant's objection, as originally proposed by the Law Revision Commission in § 40-9-105 of its proposed code. The same constitutional provision set out at the beginning of this comment constitutes the basis for a caveat as to the extent to which nonconsensual amendments may constitutionally be made without resubmitting the matter to the grand jury.
Subdivision (c) provides for a bill of particulars when needed by the defendant to know precisely what he or she is charged with. This provision is to be construed to serve that singular purpose, and is not meant to be used for purposes of broad discovery.
RULE 8. JOINDER OF OFFENSES AND DEFENDANTS
(a) Mandatory Joinder of Offenses.
(1) Criteria for Mandatory Joinder. Two or more offenses shall be joined in the same indictment, presentment, or information, with each offense stated in a separate count, or the offenses consolidated pursuant to Rule 13, if the offenses are:
(A) based on the same conduct or arise from the same criminal episode;
(B) within the jurisdiction of a single court; and
(C) known to the appropriate prosecuting official at the time of the return of the indictment(s), presentment(s), or information(s).
(2) Failure to Join Such Offenses. A defendant shall not be subject to separate trials for multiple offenses falling within Rule 8(a)(1) unless they are severed pursuant to Rule 14.
(b) Permissive Joinder of Offenses. Two or more offenses may be joined in the same indictment, presentment, or information, with each offense stated in a separate count, or consolidated pursuant to Rule 13, if:
(1) the offenses constitute parts of a common scheme or plan; or
(2) they are of the same or similar character.
(c) Joinder of Defendants. An indictment, presentment, or information may charge two or more defendants:
(1) if each of the defendants is charged with accountability for each offense included;
(2) if each of the defendants is charged with conspiracy, and some of the defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy; or
(3) even if conspiracy is not charged and all of the defendants are not charged in each count, if the several offenses charged:
(A) were part of a common scheme or plan; or
(B) were so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others.
Advisory Commission Comment. Compulsory joinder of offenses against a single defendant is covered in section (a). This rule is designed to encourage the disposition in a single trial of multiple offenses arising from the same conduct and from the same criminal episode, and should therefore promote efficiency and economy. Where such joinder of offenses might give rise to an injustice, Rule 14(b)(2) allows the trial court to relax the rule.
The commission wishes to make clear that section (a) is meant to stop the practice by some prosecuting attorneys of "saving back" one or more charges arising from the same conduct or from the same criminal episode. Such other charges are barred from future prosecution if known to the appropriate prosecuting official at the time that the other prosecution is commenced, but deliberately not presented to a grand jury. "Appropriate prosecuting official" shall be so construed as to achieve the purpose of this rule, which is the prevention of a deliberate and willful "saving back"of known charges for future prosecution. The refusal of the grand jury to act upon such other charges would not be a violation of this joinder rule so as to bar future prosecution of such charges.
Permissive joinder of offenses, addressed in section (b), allows even unrelated offenses to be joined in the same indictment or presentment, when they are offenses of the same or similar character. These charges may be severed by the defendant as a matter of right under Rule 14(b), unless the offenses are part of a common scheme or plan and the evidence of one would be admissible upon the trial of the others, since a severance in such cases would accomplish nothing in the way of insulating the defendant from the evidence of all of the separate offenses.
Permissive joinder of defendants, addressed in section (c), is aimed at achieving improved judicial economy and efficiency. Severance of defendants is addressed in Rule 14(c).
RULE 9. CAPIAS OR SUMMONS ON AN INDICTMENT OR PRESENTMENT
(a) Issuance. After the grand jury returns an indictment or presentment, the clerk shall issue a capias or a criminal summons for each defendant named in the indictment or presentment:
(1) who is not in actual custody;
(2) who has not been released on recognizance or bail; or
(3) whose bail has been declared forfeited.
The clerk shall issue a criminal summons (instead of a capias) after an indictment or presentment and for any subsequent process when so requested by the district attorney general or directed by the court.
(b) Form and Content.
(1) Capias. The capias shall:
(A) be in the same form as an arrest warrant;
(B) be signed by the clerk;
(C) describe the offense charged; and
(D) command that the defendant be arrested and brought before the court in which the charge is pending.
(2) Summons. The criminal summons shall be in the same form as the capias except that it shall require the defendant to appear before the court at a stated time and place, and shall give the defendant notice that the failure to appear as ordered may constitute contempt of court.
(c) Delivery for Service. The clerk shall deliver the capias or criminal summons to the sheriff or other person authorized by law to execute or serve it.
(d) Execution; Return.
(1) Execution. A capias or criminal summons shall be executed and served as provided in Rule 4(e).
(2) Return. The peace officer executing a capias shall make a return to the court. On or before the return day, the person to whom a criminal summons was delivered for service shall make the return. At the request of the district attorney general, any unexecuted capias shall be returned and cancelled.
(e) Reissuance. At the request of the district attorney general made while the indictment is pending, or on the court’s own initiative, the court may direct the clerk to deliver to the sheriff or other authorized person for execution or service a capias that was returned unexecuted and was not canceled, a criminal summons that was returned unanswered, or a duplicate of either.
(f) Failure to Appear. The court shall issue a capias to a defendant–other than a corporation, limited liability company, or limited liability partnership–who fails to appear in response to a criminal summons. If a corporation, limited liability company, or limited liability partnership does not appear after being summoned, the court having jurisdiction to try the offense for which the summons was issued shall enter a not guilty plea and may proceed to trial and judgment without further process.
Advisory Commission Comment. This rule is patterned after the proposals of the Law Revision Commission in § 40-9-107 and § 40-9-110 of their proposed code.
No provision is made for process following a prosecution commenced by a criminal information, because under Art. 1, § 14 of our Constitution and § 40-3-101, a threshold waiver and agreement by the accused would be required and hence process would not be needed.
This rule provides that the district attorney general or the trial judge may direct that the clerk issue a criminal summons rather than a capias.
IV. ARRAIGNMENT AND PRETRIAL
(a) General. Before any person is tried for the commission of an offense, the person shall be called into open court and arraigned, except as provided in Rule 43.
(b) Procedure. The arraignment shall consist of the following:
(1) ensuring that the defendant has a copy of the indictment, presentment, or information before called upon to plead;
(2) reading the indictment, presentment, or information to the defendant or stating to the defendant the substance of the charge; and then
(3) asking the defendant to plead to the indictment, presentment, or information.
(c) Record. The arraignment shall be entered on the record.
(d) Jointly Charged Defendants. Defendants who are jointly charged may be arraigned separately or together in the court’s discretion.
Advisory Commission Comment. This rule creates a formal arraignment procedure in Tennessee. The rule applies only to Circuit or Criminal Courts or other criminal courts of record.
The accused must be given a copy of the indictment or presentment before being called upon to plead. A uniform procedure is provided applicable to all cases.
(a) Plea Alternatives.
(1) In General. A defendant may plead not guilty, guilty, or nolo contendere. The court shall enter a plea of not guilty if a defendant refuses to plead or if a defendant corporation, limited liability company, or limited liability partnership fails to appear.
(2) Nolo Contendere. A defendant may plead nolo contendere only with the consent of the court. Before accepting a plea of nolo contendere, the court shall consider the views of the parties and the interest of the public in the effective administration of justice.
(3) Conditional Plea. A defendant may enter a conditional plea of guilty or nolo contendere in accordance with Rule 37(b).
(b) Considering and Accepting a Guilty or Nolo Contendere Plea.
(1) Advising and Questioning the Defendant. Before accepting a guilty or nolo contendere plea, the court shall address the defendant personally in open court and inform the defendant of, and determine that he or she understands, the following:
(A) The nature of the charge to which the plea is offered;
(B) the maximum possible penalty and any mandatory minimum penalty;
(C) if the defendant is not represented by an attorney, the right to be represented by counsel–and if necessary have the court appoint counsel–at trial and every other stage of the proceeding;
(D) the right to plead not guilty or, having already so pleaded, to persist in that plea;
(E) the right to a jury trial;
(F) the right to confront and cross-examine adverse witnesses;
(G) the right to be protected from compelled self-incrimination;
(H) if the defendant pleads guilty or nolo contendere, the defendant waives the right to a trial and there will not be a further trial of any kind except as to sentence; and
(I) if the defendant pleads guilty or nolo contendere, the court may ask the defendant questions about the offense to which he or she has pleaded. If the defendant answers these questions under oath, on the record, and in the presence of counsel, the answers may later be used against the defendant in a prosecution for perjury or aggravated perjury.
(2) Insuring That Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court shall address the defendant personally in open court and determine that the plea is voluntary and is not the result of force, threats, or promises (other than promises in a plea agreement). The court shall also inquire whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the district attorney general and the defendant or the defendant's attorney.
(3) Determining Factual Basis for Plea. Before entering judgment on a guilty plea, the court shall determine that there is a factual basis for the plea.
(c) Plea Agreement Procedure.
(1) In General. The district attorney general and the defendant’s attorney, or the defendant when acting pro se, may discuss and reach a plea agreement. The court shall not participate in these discussions. If the defendant pleads guilty or nolo contendere to a charged offense or a lesser or related offense, the plea agreement may specify that the district attorney general will:
(A) move for dismissal of other charges;
(B) recommend, or agree not to oppose the defendant's request for, a particular sentence, with the understanding that such recommendation or request is not binding on the court; or
(C) agree that a specific sentence is the appropriate disposition of the case.
(2) Disclosing a Plea Agreement.
(A) Open Court. The parties shall disclose the plea agreement in open court on the record, unless the court for good cause allows the parties to disclose the plea agreement in camera.
(B) Timing of Disclosure. Except for good cause shown, the parties shall notify the court of a plea agreement at the arraignment or at such other time before trial as the court orders.
(3) Judicial Consideration of a Plea Agreement.
(A) Rule 11(c)(1)(A) or (C) Agreement. If the agreement is of the type specified in Rule 11(c) (1)(A) or (C), the court may accept or reject the agreement pursuant to Rule 11(c)(4) or (5), or may defer its decision until it has had an opportunity to consider the presentence report.
(B) Rule 11(c)(1)(B) Agreement. If the agreement is of the type specified in Rule 11(c)(1)(B), the court shall advise the defendant that the defendant has no right to withdraw the plea if the court does not accept the recommendation or request.
(4) Accepting a Plea Agreement. If the court accepts the plea agreement, the court shall advise the defendant that it will embody in the judgment and sentence the disposition provided in the plea agreement.
(5) Rejecting a Plea Agreement. If the court rejects the plea agreement, the court shall do the following on the record and in open court (or, for good cause, in camera):
(A) advise the defendant personally that the court is not bound by the plea agreement;
(B) inform the parties that the court rejects the plea agreement and give the defendant an opportunity to withdraw the plea; and
(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than provided in the plea agreement.
(d) Inadmissibility of Pleas, Offers of Pleas, and Related Statements. The admissibility of a plea, plea discussion, or any related statement is governed by Tennessee Rule of Evidence 410.
(e) Record of Proceedings. –There shall be a verbatim record of the proceedings at which the defendant enters a plea. If there is a plea of guilty or nolo contendere, the record shall include the inquiries and advice to the defendant required under Rule 11(b) and (c). The plea of guilty or nolo contendere shall be reduced to writing and signed by the defendant.
Advisory Commission Comment. This rule is substantially the same as the federal rule. Entry by the court of a not guilty plea for one refusing to plead or standing mute is included in section (a). In addition, Rule 11 establishes a plea of nolo contendere, under limitations set out in section (a).
Although the rules do not require a plea of not guilty by reason of insanity, notice of the defendant's intention to defend on the basis of mental incompetency at the time of the offense is required under Rule 12.2. See also T.C.A. §§ 40-18-117 and 33-7-303.
The matters of specific advice to the defendant and explicit procedures for insuring on the record that pleas of guilty and nolo contendere are voluntarily and understandingly made are designed to produce finality in the proceedings. In addition to the matters specified in section (b)(1), Tennessee law requires that the defendant be further advised, "if applicable, that a different or additional punishment may result by reason of his prior convictions or other factors which may be established in the present action after the entry of his plea." Mackey v. State, 553 S.W.2d 337, 341 (Tenn. 1977). And, in addition to the matters specified in subdivision (b)(1), the Mackey decision requires the trial court to warn the defendant "further, that upon the sentencing hearing, evidence of any prior convictions may be presented to the judge or jury for their consideration in determining punishment."
As does the current federal rule, section (c) recognizes and approves the practice of plea negotiation and agreement, and brings that process into the light of the open courtroom. Although subdivision (c)(1) purports to list possible alternative plea "bargains," it is not contemplated that this list be taken as exclusive. Common to state practice (but not to federal practice) are guilty pleas entered in exchange for reduction of the charge to a lesser-included offense, recommendation by the prosecutor that any sentence be suspended and the defendant placed on probation, etc.
The provision in subdivision (c)(2)(B) specifically permits the trial judge to impose reasonable pretrial time limits on the court's consideration of plea agreements, a practice which will allow maximum efficiency in the docketing of cases proceeding to trial on pleas of not guilty.
It should be noted in connection with the record requirements of section (e) that the Mackey opinion, supra, requires additionally an inquiry by the court "into the defendant's understanding of his entering a plea of guilty."
The commission feels that uniformity of procedure with the federal courts in procedural matters such as those contemplated under Rules 11 and 12 is beneficial to the public and to the legal profession.
The provisions of Rule 11(c) are similar to the Federal Rules of Criminal Procedure. Rule 11(c)(1) contains the plea bargaining options. A (c)(1)(A) and a (c)(1)(C) agreement are binding on the court only in the sense that the plea is contingent on the agreement as stated. The court may accept the plea agreement under (c)(3) or it may reject the plea agreement under circumstances set forth in (c)(4). As per prior law, acceptance or rejection of the plea may be deferred until consideration of a presentence report. This is essentially the procedure contemplated by T.C.A. § 40-35-203(b).
When the court rejects the plea agreement, the defendant is given the opportunity to withdraw the plea under (c)(5). When the court rejects the plea agreement but the defendant does not withdraw a guilty plea, T.C.A. § 40-35-203 gives the defendant the right to a sentencing hearing and presentence report.
The above discussion is relevant for pleas contingent on a specific sentence. Rule 11(c)(3)(B) addresses those agreements which are not plea contingent. These types of agreements are (c)(1)(B) agreements which are clearly not binding on the court. The important distinction is that where the court does not follow the agreement the defendant may not withdraw the plea. The essence of Rule 11(c)(3)(B) is for the court to so advise the defendant at the time of the plea.
The type of plea agreements have greatly expanded in recent years because judges now impose non-capital sentences. Consequently, it is important for the lawyers to have a clear understanding as to those aspects of the agreement which are plea contingent and those that are not. The defendant must also have an understanding so that the plea is knowing.
A simple example should illustrate the type of contingent and noncontingent agreements contemplated. The state may agree that in exchange for a plea to burglary the state will recommend four years and that at the time of the sentencing hearing the state will recommend probation but the latter is a nonbinding recommendation. Two separate agreements have thus been made. The first, the four years, is a (c)(1)(C) agreement. The defendant's plea is wholly contingent on getting exactly four years. The sentence is not binding on the court but the alternative to rejection of the sentence agreement is a potential withdrawal of the plea. The second agreement, the recommendation of probation, is, under this example, a (c)(1)(B) agreement. The plea is contingent only on the state's recommendation of probation and not on probation actually being granted. If the court denies probation the defendant cannot withdraw the plea.
Advisory Commission Comments [2007]. Prior subsection (b)(1)(I) provided that a defendant may be subject to prosecution for “perjury or false statement.” False statement is no longer an offense in Tennessee, and aggravated perjury is a new offense enacted in 1989. Thus, the subsection was amended to “perjury or aggravated perjury.”
Tenn. Code Ann. §40-1-109 requires a written guilty plea for misdemeanors. The amendment to subsection (e) conforms the rule to the statute but expands the concept so that all guilty or nolo contendere pleas are written. This has long been the practice in general sessions and criminal courts.
RULE 12. PLEADINGS AND MOTIONS BEFORE TRIAL; DEFENSES AND OBJECTIONS
(a) Pleadings and Motions. Pleadings in criminal proceedings are the indictment, presentment, and information, and the pleas of not guilty, guilty, and nolo contendere. All other pleas, demurrers, and motions to quash are abolished; defenses and objections raised before trial that could have been raised by one or more of them are now raised only by motion to dismiss or to grant appropriate relief, as provided in these rules. Motions may be oral or written, at the discretion of the judge.
(b) Pretrial Motions.
(1) Motions That May Be Made Before Trial. A party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.
(2) Motions That Must Be Made Before Trial. The following must be raised before trial:
(A) a motion alleging a defect in the institution of the prosecution;
(B) a motion alleging a defect in the indictment, presentment, or information–but at any time while the case is pending, the court may hear a claim that the indictment, presentment, or information fails to show jurisdiction in the court or to charge an offense;
(C) a motion to suppress evidence;
(D) a Rule 16 request for discovery; and
(E) a Rule 14 motion to sever or consolidate charges or defendants.
(c) Motion Date. Unless otherwise provided by local rule, the court may–at the arraignment or as soon afterward as practicable–set a deadline for the parties to make pretrial motions or requests and may also schedule a motion hearing.
(d) Notice by the State of the Intention to Use Evidence.
(1) At the State’s Discretion. At the arraignment or as soon afterward as practicable, the state may notify the defendant of its intent to use specified evidence at trial in order to afford the defendant an opportunity to object before trial under Rule 12(b)(2)(C).
(2) At the Defendant’s Request. At the arraignment or as soon afterward as practicable, in order to afford an opportunity to move to suppress evidence the defendant may request notice of the state's intent to use (in its evidence in chief at trial) any evidence that the defendant may be entitled to discover under Rule 16, subject to any relevant limitations prescribed in Rule 16.
(e) Ruling on Motion. The court shall decide each pretrial motion before trial unless it finds good cause to defer a ruling until trial or after a verdict. The court shall not defer ruling on a pretrial motion if the deferral will adversely affect a party's right to appeal. When factual issues are involved in deciding a motion, the court shall state its essential findings on the record.
(f) Effect of Failure to Raise Defenses or Objections. Unless the court grants relief for good cause, a party waives any defense, objection, or request by failing to comply with:
(1) rules requiring such matters to be raised pretrial;
(2) any deadline set by the court under Rule 12(c); or
(3) any deadline extension granted by the court.
(g) Records. A verbatim record shall be made of all proceedings at the motion hearing, including any findings of fact and conclusions of law that are made orally.
(h) Effect of Decision on Motion.
(1) Confinement. If the court grants a motion based on a defect in the institution of the prosecution or in the indictment, presentment, or information, it may also order that the defendant be continued in custody or that the defendant's bail be continued for a specified time pending the filing of a new indictment or information.
(2) Statute of Limitations. Nothing in this rule affects the provisions of any statute of limitations.
Advisory Commission Comment. This rule conforms to its federal counterpart and applies only in criminal courts of record.
The verbatim record referred to in section (g) means that the proceedings must be electronically (or in some other way) preserved, and does not necessarily mean that a written transcript must be prepared before it is needed for purposes of appeal or otherwise.
The state is also permitted to make appropriate pretrial motions under this rule.
(a) State’s Request and Defendant’s Notice.
(1) State’s Request for Notice of Alibi Defense. A district attorney general who desires disclosure of a potential alibi defense shall serve the defendant with a written request to be notified of an intention to offer an alibi defense. The request shall state the time, date, and place at which the alleged offense was committed.
(2) Defendant’s Notice in Response. On written request of the district attorney general under Rule 12.1(a)(1), the defendant intending to offer an alibi defense shall serve on the district attorney general a written notice of this intention.
(A) Content. The defendant’s notice shall state:
(i) the specific place or places at which the defendant claims to have been at the time of the alleged offense; and
(ii) the name and address of each alibi witness on whom the defendant intends to rely.
(B) Timing. Unless the court directs otherwise, the defendant shall serve such notice within ten days of the state’s request..
(b) State’s Response to Defendant’s Notice.
(1) Disclosure. If the defendant serves a notice pursuant to Rule 12.1(a)(2), the district attorney general shall disclose in writing to the defendant the name and address of:
(A) each witness on whom the state intends to rely to establish the defendant’s presence at the scene of the alleged offense; and
(B) each witness on whom the state intends to rely to rebut testimony of any of the defendant’s alibi witnesses.
(2) Timing. Unless the court directs otherwise, the district attorney general shall serve this notice within ten days after receiving defendant’s notice of alibi but in no event less than ten days before trial.
(c) Continuing Duty to Disclose. If before or during trial either party learns of the existence of an additional witness who should have been included in the information furnished under Rule 12.1(a)(2)(A) or 12.1(b)(1), that party shall promptly notify the other party of the name and address, if known, of such additional witness.
(d) Failure to Comply. If a party fails to comply with this rule, the court may exclude the testimony of any undisclosed witness offered by such party as to the defendant’s absence from or presence at the scene of the alleged offense. This rule does not limit the defendant’s right to testify.
(e) Good Cause Exceptions. For good cause shown, the court may grant an exception to any of the requirements of this rule.
(f) Inadmissibility of Withdrawn Alibi. The following is not admissible in any civil or criminal proceeding against a defendant who gave alibi notice under Rule 12.1(a)(2):
(1) evidence of an intention to rely on an alibi defense, later withdrawn; or
(2) evidence of statements made in connection with that intention.
Advisory Commission Comment. This rule conforms to the federal rule, and is part of the discovery package.
Rule 12.1 discovery is triggered by the written demand of the district attorney general. Note also that the state must reciprocate by furnishing the names of its witnesses who are expected to contradict the alibi witnesses.
Of significance to the trial judges is the provision of section (e): For good cause shown, the court may grant an exception to the requirements of this rule. The court should always state on the record the reason(s) for such a ruling.
RULE 12.2. NOTICE OF INSANITY DEFENSE OR EXPERT TESTIMONY OF DEFENDANT'S MENTAL CONDITION
(a) Defense of Insanity.
(1) Notice of Insanity Defense. A defendant who intends to assert a defense of insanity at the time of the alleged crime shall so notify the district attorney general in writing and file a copy of the notice with the clerk.
(2) Timing. Notice shall be given within the time provided for the filing of pretrial motions or at such later time as the court may direct. The court may, for cause shown, allow the defendant to file the notice late, grant additional trial-preparation time, or make other appropriate orders.
(3) Failure to File Notice. A defendant who fails to comply with the requirements of Rule 12.2(a)(1) may not raise an insanity defense.
(b) Expert Testimony of Defendant's Mental Condition.
(1) Notice of Expert Testimony. A defendant who intends to introduce expert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing on the issue of his or her guilt shall so notify the district attorney general in writing and file a copy of the notice with the clerk.
(2) Timing. Notice described in Rule 12.2(b)(1) shall be filed within the time provided for the filing of pretrial motions or at such later time as the court may direct. The court may, for cause shown, allow the defendant to file the notice late, grant additional trial-preparation time, or make other appropriate orders.
(c) Mental Examination of Defendant.
(1) Authority to Order Mental Examination. On motion of the district attorney general, the court may order the defendant to submit to a mental examination by a psychiatrist or other expert designated in the court order.
(2) Inadmissibility of Statements During Examination. No statement made by the defendant in the course of any examination conducted under this rule (whether conducted with or without the defendant’s consent), no testimony by the expert based on such statement, and no other fruits of the statement are admissible in evidence against the defendant in any criminal proceeding, except for impeachment purposes or on an issue concerning a mental condition on which the defendant has introduced testimony.
(d) Failure to Provide Notice of Expert Testimony or to Submit to Mental Examination. If a defendant fails to give notice under Rule 12.2(b) or does not submit to an examination ordered under Rule 12.2(c), the court may exclude the testimony of any expert witness offered by the defendant on the issue of the defendant's mental condition.
(e) Inadmissibility of Withdrawn Intention. Evidence of an intention as to which notice was given under Rule 12.2(a) or (b), later withdrawn, is not admissible in any civil or criminal proceeding against the person who gave notice of the intention.
Advisory Commission Comment. Like Rule 12.1, Rule 12.2 is a part of the discovery package, and conforms to the somewhat similar federal rule.
The burden is upon the defendant to give notice of any defense based upon mental condition, without a triggering request from the state.
Rule 12.2(b) imposes a notice requirement on the defendant when expert witnesses are to testify as to the defendant's mental state. The commission approves the federal advisory committee notes which indicate that lack of notice about the defendant's mental state may seriously disadvantage the district attorney general in preparing possible rebuttal proof.
Rule 12.2(c) allows examination by other experts and not just a psychiatrist. Further, the exclusion of use of the defendant's statement in a state requested examination is expanded to sentencing as well as guilt. However, this is not intended to preclude impeachment of the defendant under traditional impeachment rules.
RULE 12.3. NOTICE OF INTENT TO SEEK INCREASED SENTENCE
(a) Noncapital Cases. If the district attorney general intends to seek an enhanced punishment as a multiple, persistent, or career offender, the district attorney general shall file notice of this intention not less than ten (10) days before trial. If the notice is untimely, the trial judge shall grant the defendant, on motion, a reasonable continuance of the trial.
(b) Capital Cases.
(1) Timing. When the indictment or presentment charges a capital offense and the district attorney general intends to ask for the death penalty, he or she shall file notice of this intention not less than thirty (30) days before trial. If the notice is untimely, the trial judge shall grant the defendant, on motion, a reasonable continuance of the trial.
(2) Content. The notice shall specify that the state intends to seek the death penalty and shall specify the aggravating circumstances the state intends to rely on at the sentence hearing. The state may specify by referring to the statutory citation of the aggravating circumstance.
(c) Manner of Giving Notice. Notice under Rule 12.3(a) or (b) shall be in writing, filed with the court, and served on counsel. If the notice refers to a prior conviction or other sensitive matters, the court may permit the notice to be filed under seal.
Advisory Commission Comment. This rule implements the notice provisions of the Tennessee Criminal Sentencing Reform Act of 1989. Subdivision (a) requires that written notice under T.C.A. § 40-35-202(a) be filed not less than ten (10) days before trial. This time limitation will allow defense lawyers an opportunity to plan their trial strategy or engage in appropriate plea negotiations. Nevertheless, since the notice requirement is based on a defendant's prior record, this record may only come to light shortly before trial. Under this and related circumstances, it would be unfair for the state to proceed to trial unable to establish proof at the sentencing hearing. Consequently, the state may provide notice in less than ten (10) days but the defendant is entitled to a continuance to rechart a course of action. If the defendant does not request a continuance, the written notice shall be valid.
Subdivision (b) requires that the state give notice in capital cases. While perhaps not constitutionally required, it has been the recommended procedure. State v. Berry, 592 S.W.2d 553 (Tenn. 1980). It is also helpful to know prior to jury selection if the state will ask for the death penalty. Jury selection procedures will obviously be affected by notice of a capital offense, see Witherspoon v. Illinois, 391 U.S. 510 (1968). Moreover, the number of challenges will also vary, see Rule 24(e), as well as the number of allowed appointed counsel, see Rule 13, Section 3, Rules of the Tennessee Supreme Court. The time limitation under this subdivision is thirty (30) days although there is a safeguard as in the case of notice under subdivision (a).
Subdivision (c) provid