EFFECTIVE JULY 13, 1978
Rule 1. Scope. —These rules govern the procedure in all criminal proceedings conducted in all courts of record in Tennessee.
Additionally they govern procedure in the General Sessions Courts of the state to the extent of:
(a) The institution of criminal proceedings pursuant to Rules 3, 3.5, and 4;
(b) The disposition of criminal charges pursuant to Rule 5;
(c) Preliminary examinations pursuant to Rule 5.1;
(d) Subpoena, pursuant to Rule 17;
(e) Venue as outlined in Rule 18;
(f) Search and seizure pursuant to Rule 41;
(g) Assignment of counsel as provided in Rule 44;
(h) The use of electronic audio visual equipment to conduct initial appearances as provided by Rule 43;
(i) In any other situation where the context clearly indicates applicability. [As amended August 15, 1979; and as amended by order effective July 1, 1998.]
Advisory Commission Comments. 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 now deal directly with pretrial release because of the withdrawal of proposed Rule 46 from the original draft. 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 revised by the 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.
Comment to 1984 amendment: The 1984 amendments to the rules reflect changes in the law since the original adoption of the rules in 1978. The most obvious change has been the Tennessee Criminal Sentencing Reform Act of 1982, T.C.A. Section 40-35-101 et seq., which now provides for judge rather than jury sentencing in all but a limited number of circumstances. Constitutional decisions have been rendered in a few areas which have an impact on the rules. Moreover, appellate procedure and juvenile court are now governed by their own set of rules. The Federal Rules of Criminal Procedure, upon which the Tennessee rules were originally based, have also been amended in several respects. The 1984 amendments to the Tennessee Rules are designed therefore to update the criminal rules in harmony with the new case, rule and statutory law. [1984.]
In addition, actual practice under the rules in the past years has suggested several areas where the original rules were either unclear or somewhat deficient. Consequently, some amendments affect interpretations placed on the rules by the bench and bar where there appears to be conflict in application between local jurisdictions. [1984.]
The text of original committee comments is intended to remain unaltered even where a particular rule is amended. New committee comments, which are styled “Comment to 1984 Amendment,”[which contained this and the two preceding paragraphs] are intended to supersede the former only to the extent that they are in conflict. However, the presence of both commentaries is designed to make alterations more readily apparent. [1984.]
Advisory Commission Comments [1998]. The amendments [to rules 1, 5, and 43] permit general sessions court 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."
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 simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay and of unnecessary claims on the time of jurors. [Amended by order filed January 31, 2003, effective July 1, 2003.]
Advisory Commission Comments. This rule conforms to Rule 2 of the Federal Rules of Criminal Procedure and is a clear statement of the intention of the Commission.
Advisory Commission Comment [2003] The new language at the end of the second sentence 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.
Rule 3. The Affidavit of Complaint. —The affidavit of complaint is a written statement alleging that a person has committed an offense and alleging the essential facts constituting the offense charged. The affidavit of complaint shall be made upon oath before a magistrate or a neutral and detached court clerk who is capable of the probable cause determination required by Rule 4.
Advisory Commission Comments. This rule governs what must be done to secure the issuance of an arrest warrant. The statutory procedure prescribed in § 40-6-202 required the equivalent of what is now required by Rule 3, but it was not always fully complied with. Arrest warrants have sometimes been issued merely upon application, without an actual probable cause determination. Under our statutory scheme, per § 40-6-214, clerks of Courts of General Sessions 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, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (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, Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 527 (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.
Rule 3.5. Criminal Citation. —(a) Use of Citations. —The use of citations in arrests for misdemeanors shall be as otherwise provided by law.
(b) Reference to Citations. —All references in these rules to citations shall be construed as meaning citations issued pursuant to law. [As amended by order entered January 31, 1984, effective August 22, 1984 and by order entered January 27, 1988, effective July 10, 1988.]
Advisory Commission Comments. Prior to the original draft of these rules, the criminal citation had seen only limited use in this State. Misdemeanor traffic violations were so dealt with in T.C.A. § 59-1019 et seq. [now repealed]. Municipal ordinance violations, not limited to automobile traffic violations, were structured for citation use under § 7-63-101. However, the 1976 session of the General Assembly passed T.C.A. § 40-827 [now repealed], effective March 19, 1976, which provides for a broad use of such citations following arrests for misdemeanors.
Rule 3.5 takes precedence over any provisions of the aforesaid statutes which conflict with it. The rule may be used not only after an arrest, but also in lieu of an arrest. Rather than creating a separate "failure to appear"offense, as does T.C.A. § 40-827 [now repealed], the rule provides that a violation of the agreement to appear is a contempt of court. The punishment for such a contempt is specified in § 29-9-103.
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.
Comment to 1984 amendment: The [1984] amendment to subsection (d) adds a capias to the forms of process to arrest a person who fails to appear after being given a criminal citation. [1984.]
The [1984] amendment to subsection (e) allows an affidavit of complaint to be given under oath by persons other than those specified in Rule 3. This is the only intended exception to Rule 3. [1984.]
Comment to 1988 amendment: The [1988] amendment to this rule deletes the content of the rule in light of T.C.A. Section 40-7-118. This statute provides a comprehensive treatment of citations and mandates their use in some instances. To avoid duplicating the provisions of the statute, the Commission deemed it appropriate to simply abrogate the content of this rule. [1988.]
Rule 4. Arrest Warrant or Summons upon Complaint. —(a) Issuance. —If it appears from the affidavit of complaint or supporting affidavits filed with the affidavit of complaint that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall be issued by a magistrate or clerk to any officer authorized by law to execute it, or a criminal summons for the appearance of the defendant shall issue in lieu thereof. Before ruling on a request for a warrant, the magistrate or clerk may examine under oath the complainant and any witnesses the complainant may produce. The magistrate or clerk may issue a criminal summons instead of a warrant. The district attorney general may direct the clerk to issue either a criminal summons or a warrant. More than one warrant or criminal summons may issue on the same complaint. If a defendant fails to appear in response to the criminal summons, a warrant shall issue. The issuance of every warrant and summons in each county shall be recorded forthwith in a docket book kept by the clerk for the Court of General Sessions.
(b) Probable Cause. —The finding of probable cause shall be based upon evidence, which may be hearsay in whole or in part provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.
(1) Warrant. —The arrest warrant shall be signed by the magistrate or clerk, shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty, and shall show the county in which the warrant was issued. It shall describe the offense charged in the affidavit of complaint. It shall command that the defendant be arrested and brought before the nearest appropriate magistrate in the county in which he is arrested.
(2) Summons. —The criminal summons shall be in the same form as the warrant except that it shall summon the defendant to appear before a magistrate at a stated time and place.
(c) Form. —(1) Warrant. —The arrest warrant shall be signed by the magistrate or clerk, shall contain the name of the defendant or, if the name is unknown, any name or description by which the defendant can be identified with reasonable certainty, and shall show the county in which the warrant was issued. It shall describe the offense charged in the affidavit of complaint. It shall command that the defendant be arrested and brought before the nearest appropriate magistrate from which the warrant for arrest issued.
(2) Summons. —The criminal summons shall be in the same form as the warrant except that it shall summon the defendant to appear before a magistrate at a stated time and place.
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:
(A) The appropriate clerk or magistrate shall fix the amount of bail to be required and shall set it forth on the face of the warrant; and
(B) The sheriff of the county in which the arrest is made or his or her deputy 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 § 40-11-106.
(d) Execution or Service; and Return.
(1) By Whom. —The arrest warrant shall be executed by an officer authorized by law. The criminal summons may be served by any 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 county within this state.
(3) Manner. —The arrest warrant shall be executed by the arrest of the defendant. The officer need not have the warrant in the officer's possession at the time of the arrest, but upon request shall show the warrant to the defendant as soon as possible. If the officer does not have possession of the warrant at the time of the arrest, the officer shall then inform the defendant of the offense charged and of the fact that a warrant has been issued. The criminal summons shall be served in the same manner as a summons in a civil action.
(4) Return; Reissuance. —The officer executing a warrant shall make return thereof to the magistrate or clerk or other officer before whom the defendant is brought pursuant to Rule 5. At the request of the district attorney general any unexecuted warrant shall be returned to the magistrate or clerk by whom it was issued who shall cancel it. On or before the return day the person to whom a criminal summons was delivered for service shall make return thereof to the magistrate or clerk before whom the summons is returnable. At the request of the district attorney general made at any time while the affidavit of complaint is pending, a warrant returned unexecuted and not cancelled or a summons returned unserved or a duplicate thereof may be delivered by the magistrate or clerk to any authorized person for execution or service. [As amended August 15, 1979.]
Advisory Commission Comments. 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.
The final sentence of section (a) 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. Arrest warrants have historically made no such distinction in Tennessee. See § 40-6-207. 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 Chapter 882, Public Acts 1978 § 39-4-103, effective April 13, 1978, setting new limits on the issuance of arrest warrants for violation of support orders.
Rule 5. Initial Appearance Before Magistrate. —(a) In General. —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 the county from which the warrant for arrest issued, or 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. If a person arrested without a warrant is brought before a magistrate, an affidavit of complaint shall be filed forthwith. When an arrested person appears initially before a magistrate, the magistrate shall proceed in accordance with this rule.
(b) Small Offenses Triable by Magistrate. —If the offense charged is a small offense triable by the magistrate under T.C.A. §§ 40-117 [now § 40-1-109(b)] and 40-408 [repealed], without regard to the plea, the magistrate shall advise the defendant of the charge, and determine defendant's plea. If the defendant pleads guilty the magistrate may hear such evidence as is necessary to a sound judgment and sentence the defendant to pay a fine. If the defendant pleads not guilty, 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. If the defendant is convicted, appeal lies 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 magistrate shall advise the defendant of defendant's right to be prosecuted only upon an indictment or presentment, and to be tried by a jury. Unless the defendant expressly waives these rights in writing, the magistrate shall set a preliminary examination to be had within ten days if the defendant remains in custody and within thirty days if released under Rule 46, unless the defendant waives preliminary examination, in which case the magistrate may bind the defendant over to the 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 case upon the guilty plea and fix such sentence as the evidence warrants and the law directs. An appeal shall lie from a judgment upon a plea of guilty to a misdemeanor after waiver of grand jury investigation and jury trial, but only as to the sentence imposed.
(2) Upon Plea of Not Guilty. —If the plea is not guilty, the magistrate shall set the case for a preliminary examination within ten days if the defendant remains in custody and within thirty days if released under applicable law, unless the preliminary examination is expressly waived in writing, in which case the magistrate may then bind the defendant over to the grand jury. If the defendant offers to waive in writing the right to a grand jury investigation and a trial by jury and submit the judgment in the case to the jurisdiction of the general sessions court, and the district attorney general does not object, the magistrate may after such written waiver hear the case upon the plea of not guilty and enter such verdict and judgment as the evidence warrants and the law directs, including any fine or jail sentence prescribed by law for such misdemeanor. The State shall have no 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. —If the offense charged is a felony, the defendant shall not be called upon to plead. The magistrate shall inform the defendant of:
(1) The charge and the contents of the affidavit of complaint,
(2) The right to counsel,
(3) The right to appointed counsel if indigent,
(4) The right to remain silent and give no statement,
(5) The fact that any statement given voluntarily may be used against the defendant,
(6) The general circumstances under which the defendant may obtain pretrial release, and
(7) The right to a preliminary examination.
If the defendant waives preliminary examination, the magistrate shall forthwith bind the defendant over to the grand jury. If the defendant does not waive preliminary examination, the magistrate shall set a preliminary examination within ten days if the defendant remains in custody, and within thirty days if released under applicable law.
(e) Indictment Before Preliminary Examination. —Any defendant arrested prior to indictment or presentment for any offense, whether misdemeanor or felony, except small offenses, shall be entitled to a preliminary hearing upon the defendant's request therefor, whether the grand jury of the county be in session or not. If the defendant is indicted during the period of time in which the preliminary hearing is being continued, or at any time before accused has been afforded a preliminary hearing on a warrant, whether at the defendant's own request or that of the prosecutor, the defendant may dismiss the indictment upon motion to the court. Provided, however, that no such Motion to Dismiss shall be granted after the expiration of thirty days from the date of the defendant's arrest.
(f) The presence of the defendant at the initial appearance shall be governed by the provisions of Rule 43 of the Tennessee Rules of Criminal Procedure. [As amended August 15, 1979, and by orders entered January 31, 1984, effective August 22, 1984 and January 27, 1988, effective July 10, 1988, and January 30, 1998, effective July 1, 1998.]
Advisory Commission Comments. 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 subsection (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.
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 assumes that a judge may constitutionally impose a fine in excess of fifty dollars in any case wherein a jury could have done so, had the jury not been waived, despite the provision of Art. 6, § 14, Constitution of Tennessee, and certain cases decided thereunder. 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.
Comment to 1984 amendment: The [1984] amendments to Rule 5(c)(1) and (2) conform the rule to Tennessee Code Annotated, Section 40-4-112 which allows an appeal of the sentence even upon a plea of guilty. The amendment has no other implication as to the manner or nature of appeals from general sessions court. [1984.]
It should be noted that while existing Rule 5(c)(2) allows a de novo appeal from a general sessions court conviction, the appeal is without a jury. However, Public Acts 1984, Chapter 879, effective July 1, 1984, now permits a jury trial on such an appeal if a demand for jury trial is made at the time of filing the appeal. If no such demand is made the right to a jury trial is waived. [1984.]
Comment to 1988 amendment: The [1988] amendment to Rule 5(c)(2) conforms the rule to T.C.A. Section 27-3-131(a). This statute altered the former provision of this rule which prohibited a jury trial on de novo appeal. In light of this legislation this rule now 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. Section 27-3-131(b) requires that the demand for a jury must be made at the time of filing an appeal. [1988.]
Comment to 1998 amendment: The amendments [to rules 1, 5, and 43] permit general sessions court 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."
Rule 5.1. Preliminary Examination. —(a) Probable Cause Finding. —If from the evidence it appears that an offense has been committed and that there is probable cause to believe that the defendant committed it, the magistrate shall forthwith 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. The finding that an offense has been committed and that there is probable cause to believe that the defendant committed it shall be based upon evidence which may not be inadmissible hearsay except documentary proof of ownership and written reports of expert witnesses. The defendant may cross-examine witnesses against him or her and may introduce evidence. Rules excluding evidence from consideration by the magistrate on the ground that it was acquired by unlawful means are applicable. The evidence of the witnesses is not required 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 and when the defendant is subsequently indicted such recording shall be made available for listening to by the defendant or defendant's counsel to the end that they may be apprised of the evidence introduced upon the preliminary examination.
(b) Discharge of Defendant. —If it does not appear from the evidence that an offense has been committed and that there is probable cause for believing the defendant committed it, the magistrate shall discharge the defendant. The discharge of the defendant shall not preclude the state from instituting a subsequent prosecution for the same offense.
(c) Records. —After concluding the proceeding the magistrate shall transmit forthwith to the clerk of the criminal court all papers and records in the proceedings in those cases wherein probable cause is found. Where probable cause is not found, the records and papers will be returned to the clerk of the general sessions court. [As amended August 15, 1979.]
Advisory Commission Comments. 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. Some of the language in McKeldin v. State, 516 S.W.2d 82 (Tenn. 1974), authored by Justice Joseph W. Henry, the same justice who served as the Tennessee Supreme Court's liaison with this Commission, has fueled the contention 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. It should be reiterated that McKeldin did not mandate discovery at the preliminary hearing; it merely recognized a prevailing practice.
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. Waugh v. State, supra. See also Chapter 867, Public Acts 1978, effective March 30, 1978, amending T.C.A. § 40-1115 [now repealed].
Comment to 1979 amendment: The last sentence of 5.1(a) has been added to the rule [in 1979] to clearly eliminate the archaic and impractical requirement of § 40-1115 [now repealed], while making 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. [1979.]
Rule 6. The Grand Jury. —(a) Formation of the Grand Jury.
(1) Formation at a Regular Term. —The judge of the court authorized by law to charge the grand jury and to receive the report of that body shall, on the first day of each term of court at which a grand jury is required to be impaneled, direct the names of all the qualified jurors in attendance upon 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 twelve qualified jurors whose names are first drawn shall, with the foreperson, be 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 like powers as at a regular term.
(3) Formation of Concurrent Grand Juries. —If 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 expound the law to it as the judge shall deem proper.
(b) Vacancies on the Grand Jury.
(1) Vacancy as to Grand Juror. —If any grand juror becomes unable from any cause to serve out the term, or is excused on any ground, the court shall fill the vacancy from the original panel, if any, or if none from other qualified veniremen selected as in Subdivision (2).
(2) Vacancy as to Grand Jury Foreperson. —If for any reason the foreperson of the grand jury is unable to serve or is relieved, the court shall appoint a new one according to Subdivision (g) until such time as the foreperson is able to serve or until expiration of his or her term.
(c) Disqualification of Grand Juror by 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 jurors thereon if the member:
(A) is charged with an indictable offense; or
(B) is a prosecutor; or
(C) the offense was committed against the member person or property; or
(D) is related to the person charged or to the victim of the alleged crime by blood or marriage within the sixth degree, computing by the civil law.
(2) Filling Vacancy Created by Disqualification. —If due to the exclusion of an interested grand juror the jurors in the investigation of any matter are reduced below the number of twelve (12), the vacancy shall be filled according to Subdivision (b) only during such investigation.
(d) Powers of the Grand Jury. —The grand jury shall have inquisitorial powers over and shall have authority to return a presentment of all indictable or presentable offenses found to have been committed or to be triable within the county. The grand jurors are entitled to free access, at all proper hours, to all county offices and buildings and to the examination, without charge, of all records and other papers of any of the county officers in any way connected with their duties.
(e) Duties of the Grand Jury. —It is the duty of the grand jury to:
(1) Inquire into, consider, and act upon all criminal cases submitted to it by the district attorney general; and
(2) Inquire into any report of a criminal offense brought to its attention by a member of the grand jury; and
(3) Inquire into the condition and management of prisons and other county buildings and institutions within the county; and
(4) Inquire into the condition of the county treasury; and
(5) Inquire into the correctness and sufficiency of the bonds of county officers; and
(6) Inquire into any abuse of office by state or local officers; 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 a public offense, indictable or triable in the county, has been committed, he or she shall declare the same to the other fellow jurors, who shall thereupon investigate it.
(g) Appointment, Qualifications, Term, Compensation, Vote, and Duties of Foreman. —The judge of the court authorized by law to charge the grand jury and to receive the report of that body shall appoint the foreperson of the grand juries in the counties of their respective jurisdictions. If concurrent grand juries are impaneled, a foreperson shall be appointed for each grand jury. Every person appointed as a foreperson shall possess all the qualifications of a juror. The foreperson shall hold office and exercise powers for a term of two (2) years from appointment; however, in the discretion of the presiding judge, the foreperson may be removed, relieved, or excused from office for good cause at any time. It shall be the duty of such forepersons of grand juries to assist and cooperate with the district attorney general in ferreting out crime, to the end that the laws may be faithfully enforced; and such forepersons are directed out of term to advise the district attorney general with respect to law violations and furnish names of witnesses, whom the district attorney general may, if he or she deem proper, order summoned to go before the grand jury at the next term. In term time, the foreperson or the district attorney general may order the issuance of subpoenas for witnesses to go before the grand jury. The foreperson may vote with the grand jury and this vote shall count toward the twelve necessary for the return of an indictment. A foreperson shall receive as compensation a sum to be determined by the county legislative body, to be paid out of the county treasury in the same manner as jurors are paid, and shall receive no other compensation for these services. Such compensation shall not be less than ten dollars ($10.00) per day for each day the grand jury of which he or she is foreperson is actually in session and such sum shall not be diminished during the term of appointment.
(h) Duties of District Attorney General Regarding Grand Jury.
(1) Attendance. —Whenever required by the grand jury, the prosecuting attorney may attend before it for the purpose of giving legal advice as to any matters cognizable by them, but shall not be present, nor shall any other officer or person when the question is taken upon the finding of an indictment.
(2) Preparation of Indictments. —The district attorney general shall have indictments ready for the grand jury in all cases where the defendants have been bound over to answer a criminal charge, or are in the custody of the sheriff, so that the same may be acted upon without delay, and the witness dismissed until the day set for trial.
(i) Duties of Clerks Regarding Grand Jury.
(1) Furnishing Information to District Attorney General. —The clerk shall furnish the district attorney general, on the first day of the term, with the names of the prosecutor, defendant, and witnesses in each case.
(2) Issuing Subpoenas for Witnesses. —The clerk of the court, on the application of the grand jury, shall issue subpoenas, in such cases, for any witnesses the jury may require to give evidence before them.
(3) Issuing Process Between Terms. —The district attorneys general may call upon the clerks of their various courts for process, between the terms of their respective courts, to secure the attendance of witnesses before the grand juries on the first day of the succeeding term if, in their opinion, it is necessary to secure the ends of justice and protect the interests of the state.
(j) Witnesses Before Grand Jury.
(1) Sending for Witnesses by Grand Jury. —The grand jury shall send for witnesses whenever they, or any of them, suspect that an indictable offense has been committed.
(2) Process for Grand Jury Witnesses. —Process for witnesses sent for by a grand jury shall be directed to the sheriff or other lawful officer, and may also be executed and returned, during the term of his or her appointment, by any officer appointed by the court to wait upon the grand jury.
(3) Failure of Witnesses to Attend. —Such witnesses, being subpoenaed and failing to attend, will be liable, and may be proceeded against as other defaulting witnesses.
(4) Oath of Grand Jury Witnesses. —Witnesses thus summoned may be sworn by the clerk, or by the foreperson of the grand jury, who shall indorse the fact on the subpoena, and sign his or her name to such indorsement officially.
(5) Power of Grand Jury Foreperson to Administer Oath. —The foreperson of the grand jury shall have power to administer oaths to all witnesses brought before the grand jury to testify as to the violations of the criminal laws in all cases where the clerks of the criminal and circuit courts may administer said oath.
(6) Compelling Witnesses to Testify. —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.
(7) Immunity of Certain Witnesses from Prosecution. —No witness shall be indicted for any offense in relation to which the witness has been compelled to testify before the grand jury by the district attorney general.
(8) Detention of Grand Jury Witnesses Sought to Be Limited. —The district attorney general shall endeavor to so manage the state's business as to detain witnesses only one (1) day for appearance before the grand jury.
(9) Limited Claim of Attendance of Witnesses Living Within Ten Miles. —Witnesses who live within ten (10) miles of the court can claim only one (1) day's attendance before the grand jury, unless longer detained by order of the court.
(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 them except as provided in subdivision (2) below.
(2) Exception to Rule of Secrecy. —A member of the grand jury may be required by the court to disclose the testimony of a witness examined before them, for the purpose of ascertaining whether it is consistent with that given by the witness before the court, or to disclose the testimony given before them by any witness charged with perjury.
(l ) Grand Jurors as Petit Jurors.
(1) When Grand Jurors May Serve as Petit Jurors. —Except as provided in subdivision (2), the grand jurors may act as petit jurors in either civil or criminal cases when not engaged in the business of the grand jury.
(2) When Grand Jurors May Not Serve as Petit Jurors. —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 Comments. This rule substantially reflects existing law, but with some important differences. The provision allowing concurrent grand juries is new. 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."The Commission thus adopted the language of T.C.A. § 40-1601 [now repealed] to be included in the rules, but deliberately did not include the provisions of T.C.A. §§ 40-1602 [now repealed], 40-1603 [now repealed] and 40-1604 [now repealed] requiring special charges upon a multiplicity of offenses that often are totally irrelevant to the inquiries of a given grand jury. The Commission was of the opinion that every grand jury need not be charged on all of the laws set out (often in very general terms, e.g., the "laws regulating the operation of vehicles upon streets and highways"), but that the judge could exercise discretion as to what was likely to be relevant "and expound the law . . . as the judge shall deem proper."
Witness immunity provided in Rule 6(j)(6) and (7) requires comment. The first provision says: "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 witness has been compelled to testify before the grand jury by the District Attorney General."This is substantially what is contained in T.C.A. § 40-1623 [now repealed], which says "Immunity of witnesses. —No witness shall be indicted for any offense in relation to which he has testified before the grand jury."Note that the rule says "has been compelled to testify . . . by the District Attorney General"rather than "has testified."
Rule 6(j)(6) 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)(7) is subtitled "Immunity of Certain Witnesses from Prosecution"and is no more than T.C.A. § 40-1623 [now repealed], clarified by language expressly limiting the immunity to indictment for offenses about which the witness was compelled to testify by the District Attorney General. The statute, as construed by our Supreme Court, gave immunity only to witnesses brought before the grand jury by compulsion. Colley v. State, 179 Tenn. 651 (1943); Wireman v. State, 146 Tenn. 676 (1922). 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, expressly further limiting the immunity by the language "has been compelled to testify . . . by the District Attorney General."
The Commission views the immunity rules as being limited strictly to the instances addressed by them. Rule 6(j)(6) 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)(7) is triggered only when the District Attorney General compels the witness to testify.
The General Assembly, by Chapter 727 [§§ 40-12-104 —40-12-107], Public Acts, effective July 1, 1978, has provided a procedure designed to give citizens free access to the local grand jury. Under the Act, 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 Act 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 shall be as provided by law.
(b) Amendments of Indictments, Presentments and Informations. —An indictment, presentment or information may be amended in all cases with the consent of the defendant. If no additional or different offense is thereby charged and no substantial rights of the defendant are thereby prejudiced, the court may permit an amendment without the defendant's consent before jeopardy attaches.
(c) Bill of Particulars. —Upon motion of the defendant the court may direct the filing of a bill of particulars so as to adequately identify the offense charged.
Advisory Commission Comments. 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.
Subsection (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.
Subsection (c) provides for a bill of particulars where needed by the defendant in order that the defendant can 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. —Two or more offenses shall be joined in the same indictment, presentment, or information, with each offense stated in a separate count, or consolidated pursuant to Rule 13 if the offenses are based upon the same conduct or arise from the same criminal episode and if such offenses are known to the appropriate prosecuting official at the time of the return of the indictment(s), presentment(s), or information(s) and if they are within the jurisdiction of a single court. A defendant shall not be subject to separate trials for multiple offenses falling within this subsection 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 the offenses constitute parts of a common scheme or plan or if they are of the same or similar character.
(c) Joinder of Defendants. —Two or more defendants may be joined in the same indictment, presentment, or information:
(1) If each of the defendants is charged with accountability for each offense included; or
(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:
(i) Were part of a common scheme or plan; or
(ii) Were so closely connected in respect to time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others.
Advisory Commission Comments. 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, where 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 upon Indictment or Presentment. —(a) Issuance. —After the return of an indictment or presentment by the grand jury, the clerk shall issue a capias or a criminal summons for each defendant named in the indictment or presentment who is not in actual custody, or who has not been released on recognizance or on bail, or whose undertaking of bail has been declared forfeited. The clerk shall issue a criminal summons instead of a capias upon the request of the district attorney general or by direction of the court. Upon like request or direction the clerk shall issue subsequent process for the same defendant. The clerk shall deliver the capias or criminal summons to the sheriff or other person authorized by law to execute or serve it.
(b) Form. —The form of the capias shall be the same as that for an arrest warrant and shall be signed by the clerk. The capias shall describe the offense charged and it shall command that the defendant be arrested and brought before the court in which the charge is pending. The criminal summons shall be in the same form as the capias except that it shall summon the defendant to appear before the court at a stated time and place and shall give notice to the defendant that the failure to appear as ordered shall constitute contempt of court.
(c) Execution; Return. —The capias and criminal summons shall be executed and served as provided in Rule 4(d). The peace officer executing a capias shall make return thereof to the court. At the request of the district attorney general any unexecuted capias shall be returned and cancelled. On or before the return day the person to whom a criminal summons was delivered for service shall make return thereof.
(d) Reissuance. —At the request of the district attorney general made at any time while the indictment is pending, or upon its own initiative, the court may direct the clerk to deliver to the sheriff or other authorized person for execution or service a capias returned unexecuted and not canceled or a criminal summons returned unanswered or a duplicate of either.
(e) Failure to Appear. —If a defendant, other than a corporation, limited liability company or limited liability partnership, fails to appear in response to a criminal summons, a capias shall issue. If after being summoned, a corporation does not appear, a plea of not guilty shall be entered by the court having jurisdiction to try the offense for which the criminal summons was issued, and such court shall proceed to trial and judgment without further process. [As amended by order filed February 1, 1995, effective July 1, 1995.]
Advisory Commission Comments. 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.
Rule 10. Arraignment. —(a) Except as provided in Rule 43, before any person is tried for the commission of an offense, the person shall be called into open court and arraigned.
(b) The arraignment shall consist of reading the indictment, presentment or information to the defendant or stating to the defendant the substance of the indictment, presentment or information, and calling on him or her to plead thereto. The defendant shall be given a copy of the indictment, presentment or information before called upon to plead. An entry of record shall be made of the arraignment.
(c) Defendants who are jointly charged may be arraigned separately or together in the discretion of the court.
Advisory Commission Comments. This rule creates for the first time a formal arraignment procedure in Tennessee, although our courts have generally followed such orderly procedure. 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, and this rule thus satisfies the provision of T.C.A. § 40-2008 [now repealed] requiring that an incarcerated defendant in a capital case be provided with a copy of the indictment at least two days before trial.
Rule 11. Pleas. —(a) Alternatives. —A defendant may plead not guilty, guilty, or nolo contendere. If a defendant refuses to plead or if a defendant corporation, limited liability company or limited liability partnership fails to appear, the court shall enter a plea of not guilty.
(b) Nolo Contendere. —A defendant may plead nolo contendere only with the consent of the court. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice.
(c) Advice to Defendant. —Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform the defendant of, and determine that he or she understands, the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and
(2) If the defendant is not represented by an attorney, that he or she has the right to be represented by an attorney at every stage of the proceeding and, if necessary, one will be appointed; and
(3) That the defendant has the right to plead not guilty or to persist in that plea if it has already been made, and the right to be tried by a jury and at that trial the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right against compelled self-incrimination; and
(4) That if the defendant pleads guilty or nolo contendere there will not be a further trial of any kind except as to sentence so that by pleading guilty or nolo contendere the defendant waives the right to a trial; and
(5) That 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, and 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 false statement.
(d) Insuring That the Plea Is Voluntary. —The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The court shall also inquire as to 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.
(e) Plea Agreement Procedure.
(1) In General. —The district attorney general and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the district attorney general will do any of the following:
(A) Move for dismissal of other charges; or
(B) Make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or
(C) Agree that a specific sentence is the appropriate disposition of the case.
The court shall not participate in any such discussions.
(2) Notice of Such Agreement. —If a plea agreement has been reached by the parties, the court shall, on the record, require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered. If the agreement is of the type specified in subdivision (e)(1)(A) or (C), the court may accept or reject the agreement pursuant to subdivision (e)(4), or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report. If the agreement is of the type specified in subdivision (e)(1)(B), the court shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw the plea.
(3) Acceptance of a Plea Agreement. —If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.
(4) Rejection of a Plea Agreement. —If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw the plea, and advise the defendant that if he or she persists in the guilty plea or plea of nolo contendere the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.
(5) Time of Plea Agreement Procedure. —Except for good cause shown, notification to the court of the existence of a plea agreement shall be given at the arraignment or at such other time, prior to trial, as may be fixed by the court.
(6) Inadmissibility of Pleas, Offers of Pleas, and Related Statements. —Except as otherwise provided in this paragraph, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.
(f) Determining Accuracy of Plea. —Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.
(g) Record of Proceedings. —A verbatim record of the proceedings at which the defendant enters a plea shall be made and, if there is a plea of guilty or nolo contendere, the record shall include, without limitation, the court's advice to the defendant, the inquiry into the voluntariness of the plea including any plea agreement, and the inquiry into the accuracy of a guilty plea. [As amended by order entered January 31, 1984, effective August 22, 1984; and by order filed February 1, 1995, effective July 1, 1995.]
Advisory Commission Comments. 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, as provided in T.C.A. § 40-2309 [now repealed], is included in section (a). In addition, Rule 11 establishes for the first time in Tennessee practice the availability of 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 §§ 40-18-117 and 33-709(e) [now § 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 (c)(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 subsection (c)(5), 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 (e) recognizes and approves the practice of plea negotiation and agreement, and brings that process into the light of the open courtroom. Although subsection (e)(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 subsection (e)(5) 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 (g) 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.
Comment to 1984 amendment: The [1984] amendment to Rule 11(e)(2) conforms the rule to Rule 11(e)(2) of the Federal Rules of Criminal Procedure. Essentially the amendment refers to (e)(1) which sets forth the plea bargaining options. An (e)(1)(A) and an (e)(1)(C) agreement is 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 (e)(3) or it may reject the plea agreement under circumstances set forth in (e)(4). As per the former rule, acceptance or rejection may be deferred until consideration of a presentence report. This is essentially the procedure contemplated by T.C.A., Section 40-35-203(b). [1984.]
Where the court rejects the plea agreement, the defendant is given the opportunity to withdraw the plea under (e)(4). When the court rejects the plea agreement but the defendant does not withdraw a guilty plea, T.C.A., Section 40-35-207 [repealed] gives the defendant the right to a sentencing hearing and presentence report. [1984.]
The above discussion is relevant for pleas contingent on a specific sentence. The amendment to (e)(2) addresses those agreements which are not plea contingent. These types of agreements are (e)(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 the amendment to (e)(2) is for the court to so advise the defendant at the time of the plea. [1984.]
The type of plea agreements have greatly expanded in light of the new judge sentencing law. 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. [1984.]
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 an (e)(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, an (e)(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. [1984.]
It should be noted that a recent amendment to the similar federal rule allows for a plea with a reserved question of law which may be appealed. See Fed. R. Crim. P. 11(a)(2). This procedure exists under the current Tennessee rules. See Tenn. R. Crim. P. 37(b)(2). [1984.]
Rule 12. Pleadings and Motions Before Trial; Defenses and Objections. —(a) Pleadings and Motions. —Pleadings in criminal proceedings shall be the indictment, presentment and the information, and the pleas of not guilty, guilty, and nolo contendere. All other pleas, and demurrers and motions to quash are abolished, and defenses and objections raised before trial which heretofore could have been raised by one or more of them shall be raised only by motion to dismiss or to grant appropriate relief, as provided in these rules.
(b) Pretrial Motions. —Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial:
(1) Defenses and objections based on defects in the institution of the prosecution; or
(2) Defenses and objections based on defects in the indictment, presentment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings); or
(3) Motions to suppress evidence; or
(4) Requests for discovery under Rule 16; or
(5) Requests for a severance or consolidation of charges or defendants under Rule 14.
(c) Motion Date. —Unless otherwise provided by local rule, the court may, at the time of the arraignment or as soon thereafter as practicable, set a time for the making of pretrial motions or requests and, if required, a later date of hearing.
(d) Notice by the State of the Intention to Use Evidence.
(1) At the Discretion of the State. —At the arraignment or as soon thereafter as is practicable, the state may give notice to the defendant of its intention to use specified evidence at trial in order to afford the defendant an opportunity to raise objections to such evidence prior to trial under subdivision (b)(3) of this rule.
(2) At the Request of the Defendant. —At the arraignment or as soon thereafter as is practicable the defendant may, in order to afford an opportunity to move to suppress evidence under subdivision (b)(3) of this rule, request notice of the state's intention to use (in its evidence in chief at trial) any evidence which the defendant may be entitled to discover under Rule 16 subject to any relevant limitations prescribed in Rule 16.
(e) Ruling on Motion. —A motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after verdict, but no such determination shall be deferred if a party's right to appeal is adversely affected. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.
(f) Effect of Failure to Raise Defenses or Objections. —Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (c), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.
(g) Records. —A verbatim record shall be made of all proceedings at the hearing, including such findings of fact and conclusions of law as are made orally.
(h) Effect of Determination. —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. Nothing in this rule shall be deemed to affect the provisions of any statute of limitations.
Advisory Commission Comments. This rule conforms to its federal counterpart, and applies only in criminal courts of record.
The all-encompassing motion to dismiss was substantially implemented by the 1975 amendment to T.C.A. § 40-2301 [now repealed].
The verbatim record referred to in (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.
Rule 12.1. Notice of Alibi. —(a) Notice by Defendant. —Upon written demand of the district attorney general stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such different time as the court may direct, upon the district attorney general a written notice of an intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi.
(b) Disclosure of Information and Witness. —Within ten days thereafter, but in no event less than ten days before trial, unless the court otherwise directs, the district attorney general shall serve upon the defendant or the defendant's attorney a written notice stating the names and addresses of the witnesses upon whom the state intends to rely to establish the defendant's presence at the scene of the alleged offense and any other witnesses to be relied on to rebut testimony of any of the defendant's alibi witnesses.
(c) Continuing Duty to Disclose. —If prior to or during trial a party learns of an additional witness whose identity, if known, should have been included in the information furnished under subdivision (a) or (b), the party shall promptly notify the other party or the other party's attorney of the existence and identity of such additional witness.
(d) Failure to Comply. —Upon the failure of either party to comply with the requirements of 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 shall not limit the right of the defendant to testify in his or her own behalf.
(e) Exceptions. —For good cause shown, the court may grant an exception to any of the requirements of this rule.
(f) Inadmissibility of Withdrawn Alibi. —Evidence of an intention to rely upon an alibi defense, later withdrawn, or of statements made in connection with such intention, is not admissible in any civil or criminal proceeding against the person who gave notice of the intention.
Advisory Commission Comments. 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. —If a defendant intends to rely upon the defense of insanity at the time of the alleged crime, the defendant shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, notify the district attorney general in writing of such intention and file a copy of such notice with the clerk. If there is a failure to comply with the requirements of this subdivision, insanity may not be raised as a defense. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.
(b) Expert Testimony of Defendant's Mental Condition. —If a defendant intends to introduce expert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing upon the issue of his or her guilt, the defendant shall, within the time provided for the filing of pretrial motions or at such later time as the court may direct, notify the district attorney in writing of such intention and file a copy of such notice with the clerk. The court may for cause shown allow late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate.
(c) Mental Examination of Defendant. —In an appropriate case the court may, upon motion of the district attorney, order the defendant to submit to a mental examination by a psychiatrist or the other expert designated for this purpose in the order of the court. No statement made by the defendant in the course of any examination provided for by this rule, whether the examination be with or without the consent of the defendant, no testimony by the expert based upon such statement, and no other fruits of the statement shall be admitted in evidence against the defendant in any criminal proceeding except for impeachment purposes or on an issue respecting mental condition on which the defendant has introduced testimony.
(d) Failure to Comply. —If there is a failure to give notice when required by subdivision (b) of this rule or to submit to an examination when ordered under subdivision (c) of this rule, 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 subdivision (a) or (b), later withdrawn, is not admissible in any civil or criminal proceeding against the person who gave notice of the intention. [As amended by order entered January 31, 1984, effective August 22, 1984.]
Advisory Commission Comments. Like Rule 12.1, Rule 12.2 is a part of the discovery package, and it conforms to the 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.
Comment to 1984 amendment: The title to this rule is altered to reflect the amendments to the rule made necessary to bring the rule in harmony with the federal counterpart. [1984.]
The [1984] amendment to (b) considerably expands the notice requirement placed on the defendant when expert witnesses are to testify as to the defendant's mental state. The commission approved the federal advisory committee notes which indicate that lack of notice about the defendant's mental state may seriously disadvantage the district attorney in preparing possible rebuttal proof. [1984.]
The [1984] amendment to (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. [1984.]
Rule 12.3. Notice of Intent to Seek Increased Sentence. —(a) Notice in Noncapital Cases. —Written statements of the district attorney giving notice that the defendant should be sentenced to an enhanced punishment, for an especially aggravated offense, and/or as a persistent offender shall be filed not less than ten (10) days prior to trial. If the notice is filed later than this time, the trial judge shall grant the defendant, upon motion, a reasonable continuance of the trial.
(b) Notice in Capital Cases. —Where a capital offense is charged in the indictment or presentment and the district attorney intends to ask for the death penalty, written notice thereof shall be filed not less than thirty (30) days prior to trial. If the notice is filed later than this time, the trial judge shall grant the defendant, upon motion, a reasonable continuance of the trial. The notice shall specify that the State intends to seek the death penalty and the notice shall specify those aggravating circumstances the State intends to rely upon at a sentence hearing. Specification may be complied with by a reference to the citation of the circumstance.
(c) Manner of Giving Notice. —Notice under (a) or (b) shall be in writing and filed with the court and served on counsel. Where the notice contains reference to a prior conviction or other sensitive matters the notice may be filed under seal in the discretion of the court. [Added by order entered January 31, 1984, effective August 22, 1984.]
Advisory Commission Comments. This rule is entirely new and implements the notice provisions of the judge sentencing law. [1984.]
Subsection (a) requires that written notice under T.C.A. Section 40-35-202(a) be filed within ten (10) days of 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 to a large extent 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. [1984.]
Subsection (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(d), as well as the number of allowed appointed counsel, see Rule 13(1)(B), Rules of the Tennessee Supreme Court. The time limitation under this subsection is thirty (30) days although there is a safeguard as in the case of notice under subsection (a). [1984.]
Subsection (c) provides that notices may be under seal, in the discretion of the court, if public notice may be prejudicial to the defendant such as disclosing a prior record. [1984.]
Rule 13. Consolidation or Severance. —(a) Consolidation. —The court may order consolidation of two or more indictments, presentments, or informations for trial if the offenses and all defendants could have been joined in a single indictment, presentment, or information pursuant to Rule 8.
(b) Severance. —The court may order a severance of offenses or defendants before trial if a severance could be obtained on motion of a defendant or of the state pursuant to Rule 14.
Advisory Commission Comments. Rules 8, 13 and 14 are closely tied together. Rule 13 allows at the court's option the consolidation or severance of offenses or defendants in those instances in which the state or the defendant could have elected to consolidate or sever. Where the court orders a consolidation under section (a), the case is then in the "permissive joinder"status, and the defendant(s) may exercise the options available under Rule 14. A severance ordered by the court under section (b) is final.
Rule 14. Severance of Offenses and Defendants. —(a) Timeliness of Motion; Waiver; Double Jeopardy. —A defendant's motion for severance of offenses or defendants must be made before trial, except that a motion for severance may be made before or at the close of all evidence if based upon a ground not previously known. Severance is waived if the motion is not made at the appropriate time. A motion by the state for severance of counts or defendants may be granted only prior to trial, except by consent of the defendant. If a motion for severance is granted during the trial and if the motion was made or consented to by the defendant, the granting of the motion shall not bar a subsequent trial of that defendant on the offenses severed.
(b) Severance of Offenses.
(1) If two or more offenses have been joined or consolidated for trial pursuant to Rule 8(b), the defendant shall have a right to a severance of the offenses 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.
(2) If two or more offenses have been joined or consolidated for trial pursuant to Rule 8(a), the court shall grant a severance of offenses in any of the following conditions:
(i) If before trial on motion of the state or the defendant it is deemed appropriate to promote a fair determination of the defendant's guilt or innocence of each offense.
(ii) If during trial with consent of the defendant it is deemed necessary to achieve a fair determination of the defendant's guilt or innocence of each offense. The court shall consider whether, in light of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.
(iii) If the Court finds merit in both a motion by the district attorney general for a continuance based upon exigent circumstances that temporarily prevent the state from being ready for trial of the joined prosecutions and an objection by the defendant to the continuance based on a demand for speedy trial. If the Court grants a severance under this subdivision, it shall also grant a continuance of the prosecutions wherein the exigent circumstances exist.
(c) Severance of Defendants.
(1) If a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to the defendant but is not admissible against the defendant, the court shall determine whether the state intends to offer the statement in evidence at trial. If so, the court shall require the prosecuting attorney to elect one of the following courses:
(i) A joint trial at which the statement is not admitted into evidence or at which, if admitted, the statement would not constitute error; or
(ii) A joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, if, as deleted, the confession will not prejudice the moving defendant; or
(iii) Severance of the moving defendant.
(2) The court, on motion of the state or on motion of the defendant other than under subdivision (c)(1), shall grant a severance of defendants if:
(i) Before trial, it is deemed necessary to protect a defendant's right to a speedy trial or it is deemed appropriate to promote a fair determination of the guilt or innocence of one or more defendants; or
(ii) During trial, with consent of the defendant to be severed, it is deemed necessary to achieve a fair determination of the guilt or innocence of one or more defendants.
(d) Failure to Prove Grounds for Joinder of Defendants. —If a defendant moves for severance at the conclusion of the state's case or at the conclusion of all the evidence, and if there is not sufficient evidence to support the allegation upon which the moving defendant was joined for trial with the other defendant or defendants, and if, in view of this lack of evidence, severance is deemed necessary to achieve a fair determination of the moving defendant's guilt or innocence, the court shall grant a severance.
Advisory Commission Comments. Offenses permissively joined by the prosecution (or by the court) may be severed upon motion by the defendant as a matter of right, with one exception: where the offenses are part of a common scheme or plan and the evidence of one would be admissible upon the trial of the others.
The provisions of section (b)(2) set out when and under what circumstances there may be a severance of cases consolidated under the compulsory joinder rule.
Severance of defendants is covered in section (c), dealing with the Bruton issue. Bruton v. United States, 391 U.S. 123 (1968). Subdivisions (c)(1)(i) and (ii) contain provisions making severance unnecessary where no Bruton violation would follow, as would be true, for example, where the confessing codefendant testifies or where redaction eliminates any prejudice to the nonconfessing codefendant.
Rule 15. Depositions. —(a) When Taken. —Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition and that any designated book, paper, document, record, recording, or other material not privileged, be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may direct that the witness's deposition be taken. After the deposition has been subscribed the court may discharge the witness.
(b) Notice of Taking. —The party at whose instance a deposition is to be taken shall give to every party reasonable written notice of the time and place for taking the deposition. The notice shall state the name and address of each person to be examined. On motion of a party upon whom the notice is served, the court for cause shown may extend or shorten the time or change the place for taking the deposition. The officer having custody of a defendant shall be notified of the time and place set for the examination and shall, unless the defendant waives in writing the right to be present, produce the defendant at the examination and keep him or her in the presence of the witness during the examination, unless, after being warned by the court that disruptive conduct will cause the defendant to be removed from the place of the taking of the deposition, the defendant persists in conduct which is such as to justify being excluded from that place. A defendant not in custody shall have the right to be present at the examination upon request subject to such terms as may be fixed by the court, but the failure, absent good cause shown, to appear after notice and tender of expenses in accordance with subdivision (c) of this rule shall constitute a waiver of that right and of any objection to the taking and use of the deposition based upon that right.
(c) Payment of Expenses. —Whenever a deposition is taken at the instance of the state, or whenever a deposition is taken at the instance of a defendant who is unable to bear the expenses of the taking of the deposition, the court may direct that the expense of travel and subsistence of the defendant and the defendant's attorney for attendance at the examination and the cost of the transcript of the deposition shall be paid by the state.
(d) How Taken. —Subject to such additional conditions as the court shall provide, a deposition shall be taken and filed in the manner provided in civil actions except as otherwise provided in these rules, provided that (1) in no event shall a deposition be taken of a party defendant without his consent, and (2) the scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself. The state shall make available to the defendant or the defendant's counsel for examination and use at the taking of the deposition any statement of the witness being deposed which is in the possession of the state and to which the defendant would be entitled at the trial.
(e) Use. —At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the Tennessee Rules of Evidence, may be used as substantive evidence if:
(1) The witness is unavailable, as unavailability is defined in subdivision (h) of this rule; or
(2) Upon motion and notice, it appears that such exceptional circumstances exist as make it desirable, in the interest of justice with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.
Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.
If only part of a deposition is offered in evidence by a party, an adverse party may require the party to offer all of it which is relevant to the part offered, and any party may offer other parts.
A declarant is not unavailable as a witness if the declarant's exemption, refusal, inability, or absence is due to the procurement or wrongdoing of the proponent of the statement for the purpose of preventing the witness from attending or testifying.
(f) Objections to Deposition Testimony. —Objections to deposition testimony or evidence or parts thereof and the grounds for the objection shall be stated at the time of the taking of the deposition.
(g) Deposition by Agreement Not Precluded. —Nothing in this rule shall preclude the taking of a deposition, orally or upon written questions, or the use of a deposition, by agreement of the parties.
(h) Definition of Unavailability.–As used in this rule, “unavailability of a witness” includes situations in which the declarant:
(1) Is exempted by ruling of the court on the grounds of privilege from testifying concerning the subject matter of the declarant’s statement; or
(2) Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or
(3) Demonstrates a lack of memory of the subject matter of the declarant’s statement; or
(4) Is unable to be present or to testify at the hearing because of the declarant’s death or then existing physical or mental illness or infirmity; or
(5) Is absent from the hearing and the proponent of the declarant’s statement has been unable to procure the declarant’s attendance by process or other reasonable means. [As amended by order entered January 25, 1991, effective July 1, 1991; and by order filed January 31, 2003, effective July 1, 2003.]
Advisory Commission Comments. The law in Tennessee, under T.C.A. § 40-2428 [now repealed] and going back to the Code of 1858, has long provided that the accused may, by order of the court, have the depositions of witnesses taken in the manner prescribed for taking depositions in civil cases, on notice to the District Attorney. Rule 15 extends to the state the same potential use of depositions.
The case law decided under T.C.A. § 40-2428 [now repealed] makes it clear that such depositions can only be taken by leave of the court, and not upon agreement of counsel without such a court authorization. Curtis v. State, 82 Tenn. 502 (1884). The same rule applies here. Exceptional circumstances must be present; in that context, the trial judge may permit the taking but is not required to. The Commission intends that depositions be taken only in those cases wherein their use is clearly necessary, and that their taking not be authorized in other cases. The Commission intends the provisions of section (g) to mean that a deposition can be taken or used by agreement of the parties, but only after the court has first approved and authorized the taking. The "taking by agreement"relates to a waiver of notice, etc.; "use by agreement"simply means that where the taking of a deposition has been authorized by the court, it may be admitted into evidence by agreement without strict compliance with the provisions relative to admissibility. The Commission intends that the taking of depositions always be expressly authorized by the trial judge, and not left to the agreement of counsel. The Commission also wants to make it clear that depositions are not meant to function as discovery devices in criminal cases. Their taking is meant to be tightly confined to those exceptional cases where the interests of justice require the taking for the preservation of testimony for use at trial, and not for discovery.
This rule conforms to its federal counterpart, except that the Commission added section (e)(3) to permit the use of a deposition as proof under extraordinary circumstances in the interest of justice.
Advisory Commission Comments [1991]. Conforming amendments to the Tennessee Rules of Evidence are twofold. Former Rule 15(e)(2) is deleted; it allowed substantive use of prior inconsistent depositions if the deponent testified at trial. Rule 15(e)(3) is amended and former Rule 15(h)(3) deleted in order to eliminate lack of memory as a ground of unavailability. T.R.Evid. 804(a) contains no such ground.
Advisory Commission Comment [2003] Paragraph (h)(3) is new, making lack of memory a ground of unavailability in conformity with Evidence Rule 804(a)(3).
Rule 16. Discovery and Inspection. —(a) Disclosure of Evidence by the State.
(1) Information Subject to Disclosure.
(A) Statement of Defendant. —Upon request of a defendant the state shall permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the district attorney general; the substance of any oral statement which the state intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogations by any person then known to the defendant to be a law-enforcement officer; and recorded testimony of the defendant before a grand jury which relates to the offense charged. Where the defendant is a corporation, limited liability company, limited liability partnership, partnership, association or labor union, the court may grant the defendant, upon its motion, discovery of relevant recorded testimony of any witness before a grand jury who (1) was, at the time of the testimony, so situated as an officer or employee as to have been able legally to bind the defendant in respect to conduct constituting the offense, or (2) was, at the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been able legally to bind the defendant in respect to that alleged conduct in which the witness was involved. Upon a determination by the state to place codefendants on trial jointly, the state shall promptly furnish each defendant who has moved for discovery under this subdivision with all information discoverable under this subdivision as to each codefendant.
(B) Defendant's Prior Record. —Upon request of the defendant, the state shall furnish to the defendant such copy of the defendant's prior criminal record, if any, as is within the possession, custody, or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the district attorney general.
(C) Documents and Tangible Objects. —Upon request of the defendant, the state shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the state, and which are material to the preparation of the defendant's defense or are intended for use by the state as evidence in chief at the trial, or were obtained from or belong to the defendant.
(D) Reports of Examinations and Tests. —Upon request of a defendant the state shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the district attorney general and which are material to the preparation of the defense or are intended for use by the state as evidence in chief at the trial.
(2) Information Not Subject to Disclosure. —Except as provided in paragraphs (A), (B), and (D) of subdivision (a)(1), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by the district attorney general or other state agents or law-enforcement officers in connection with the investigation or prosecution of the case, or of statements made by state witnesses or prospective state witnesses.
(3) Grand Jury Transcripts. —Except as provided in Rule 6 and subdivision (a)(1)(A) of this rule, these rules do not relate to discovery or inspection of recorded proceedings of a grand jury.
(4) Failure to Call Witness. —The mere fact that a witness' name is on a list furnished under this rule shall not be grounds for comment upon a failure to call the witness.
(b) Disclosure of Evidence by the Defendant.
(1) Information Subject to Disclosure.
(A) Documents and Tangible Objects. —If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the state, the defendant, on request of the state, shall permit the state to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in chief at the trial.
(B) Reports of Examinations and Tests. —If the defendant requests disclosure under subdivision (a)(1)(C) or (D) of this rule, upon compliance with such request by the state, the defendant, on request of the state, shall permit the state to inspect and copy or photograph any results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the results or reports relate to the witness' testimony.
(2) Information Not Subject to Disclosure. —Except as to scientific or medical reports, this subdivision does not authorize the discovery or inspection of reports, memoranda, or other internal defense documents made by the defendant, or the defendant's attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by state or defense witnesses, or by prospective state or defense witnesses, to the defendant, the defendant's agents or attorneys.
(3) Failure to Call Witness. —The mere fact that a witness' name is on a list furnished under this rule shall not be grounds for comment upon a failure to call a witness.
(c) Continuing Duty to Disclose. —If, prior to or during trial, a party discovers additional evidence or material previously requested or ordered, which is subject to discovery or inspection under this rule, the party shall promptly notify the other party or the other party's attorney or the court of the existence of the additional evidence or material.
(d) Regulation of Discovery.
(1) Protective and Modifying Orders. —Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party's statement shall be sealed and preserved in the records of the court to be made available to the reviewing courts in the event of an appeal.
(2) Failure to Comply with a Request. —If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discover