Criminal Procedure

Discretion: legal power to make decisions with little specific direction from higher authorities.

Victim: may or may not elect to report a crime; victims are witnesses for the state.

Prosecutor: lawyer who is a government employee and represents the interests of the state (and in an indirect way, the victim); ha
discretion to pursue charges & what charges to pursue; based on factors such as:
1. accused’s criminal record
2. severity of the crime
3. role the victim played in the crime
4. impact of prosecution on the accused and the victim
5. need for deterrence
6. likelihood of conviction

1. Physical Line Up-Line up-5-6 ppl put in a room where witness views them through a window, police officer is in the room w
witness and multiple witnesses are given separate chances to identify to ensure there is no prejudice. When a person is in a line up
may be asked to turn, move, talk or other identifying features. If he police put together the lineup, they must use similar people. Wh
is a huge issue, you waive your client's presence so the witness can't see him in an orange jumpsuit.
1. Show Up- One person is exhibited to the witness. These are typically done immediately after a crime occurs and a suspect
located. Another type is done in an exigent situation. These are "frowned upon" and are viewed as subjective.
1. Photo Array- The most prevalent practice. The reason is that there is no right to counsel in the photo array. The witness is
shown 6 photos and asked if they see the assailant. Metro uses the "six pack", feds use a series of sequential photos, one at a time
Theory says that in a six pack, witnesses will assume that the guilty party IS in the picture and will pick the one that's closest instea
good analysis of the pics.

Two ways to challenge IDs

6th amend right to counsel
5th amend due process clause, and the 5th can be used to challenge ANY identification and is the only way to challenge a photo a

Wade-Gilbert Identification rule.

Pre-trial diversion: person is put on probation without pleading guilty.

Expungable probation: person pleads guilty but judgment is held in advance until end of successful probationary term – then recor
expunged.

Pleas: Guilty, Not Guilty, Nolo contendre ( No contest)

Indigent – based on federal poverty guidelines (1 person making $240/week or less)

TCA 40-38-102 Rights of victims and witnesses; waiting areas

(a) All victims of crime and prosecution witnesses have the right to:
(1) Be treated with dignity and compassion; and
(2) Protection and support with prompt action in the case of intimidation or retaliation from the defendant and the defendant's agen
friends.
(b)(1) Without requiring the expenditure of additional funds or additional construction or renovation, whenever possible, victims of c
and prosecution witnesses should be provided waiting areas that are separate and secure from the defendant or defense witnesse
during all stages of the judicial process.
(2) In order to accomplish the goals of this section, the court security committee established by § 16-2-505(d)(2) shall have among
duties the responsibility to assess existing facilities to determine where space could be allocated to provide the secure waiting area
described in subdivision (b)(1). A report of this assessment shall be included in the findings provided to the county legislative body
the administrative office of the courts pursuant to § 16-2-505(d)(3)(B). In cases where the committee determines that existing facilit
cannot accommodate the goals of this section, the committee shall include in its report recommendations as to how a secure waitin
area could be provided for in new construction and renovation projects. In a jurisdiction where existing facilities cannot meet the go
this section, the local government should consider the recommendation of the committee's report in planning for any new construct
renovation of courtroom facilities.
(c) All victims of crime shall have the right to collect court-ordered restitution in the same manner as a civil judgment, as authorized
pursuant to § 37-1-131(b)(2) or § 40-35-304(h).

TCA 40-38-104 Grief counseling; educational preferences

 (a) If a child is the victim of a homicide not committed by the parents, the parents of such child shall be able to apply to the criminal
injuries compensation fund for reimbursement to such parents for expenses incurred in obtaining necessary grief counseling.
(b) All vocational schools and technical institutes operated by the board of regents shall, if there are limitations as to the number of
persons who may be admitted to a particular school or institute or in a particular class or program, give preference in making such
admissions to victims of violent crime. For purposes of this subsection (b), "victim" means the person who will become the primary
earner in the victim's family if the victim was the primary wage earner and the crime resulted in such victim's death or permanent
disability.

TCA 40-38-105 Prompt disposition of cases; priorities and preferences

(a) All parties affected by a criminal offense, including the victim and/or survivors of the victim and witnesses to the offense, shall b
able to expect that the operation of the criminal justice system will not be unnecessarily delayed and that they will be able to return
normal lives as soon as possible. To this end, all persons involved in the criminal justice system shall make every effort to dispose
any charges against a defendant within one hundred eighty (180) days of the date of the defendant's indictment, and in those case
which the defendant is charged with a crime of violence involving death or serious bodily injury to a victim, all applications for
continuance of any court date by any party shall be in writing setting out the reasons for the continuance. If, at any time during the
proceeding, the court grants a continuance to the defendant and the defendant is not represented by an attorney, the court shall file
order in the records setting out the reasons why the court granted the continuance. If, for any reason, the case is not tried or otherw
disposed of in one hundred eighty (180) days of the indictment, the court shall set out in a certificate the reasons why the case is s
pending before the court.
(b) All parties affected by a criminal offense shall be able to expect that cases involving crimes against the person are given judicia
prosecutorial priority over cases involving property crimes.

Felony: punishable by a year or more

Misdemeanor: punishable by less than a year

Summons: notification that you are to appear in court

Citation: notification that you are to appear in court as in minor traffic violations

Arrest: failure to appear as scheduled in the summons may result in arrest.

Rules of criminal procedure-TN admin office of courts

Apply in all criminal procedures in TN courts of record (trial, appellate courts, but not Gen Sessions)
There is no court reporter in a Gen Sessions

Stages of Criminal Process:

1. Complaint – formal charge of criminal activity; must provide proof of probable cause for an arrest warrant to be issued.
2. Custody – suspect is arrested, taken into custody.
3. Initial Appearance – non-adversary hearing; formally notified of charge, advised of basic rights; appointment of attorney (if
defendant is indigent); issue of bail addressed (if defendant is still in custody); date set for preliminary hearing.
4. Preliminary Hearing – adversary proceeding presided over by a judge (without a jury) and conducted by the defense attorn
the prosecutor. Must be within 10 days if defendant does not make bail. Purpose is to determine whether there is probable cause
believe that:
a. A crime was committed and
b. The accused committed it.
i. Probable cause decision cannot be made on hearsay EXCEPT:
1. written report of expert witnesses
2. documentary proof of ownership
ii. Probable cause standard is VERY LOW.
5. Grand Jury: 12 plus foreman; need 12 voting unanimous for true bill (indictment); secret to public & defendants; if no true b
found – case can be dismissed or Prosecutor can retry.
a. Serves as a check on prosecutorial abuse by screening cases that do not have enough merit to justify continuing
proceeding in criminal justice system.
b. Investigates possible violations of criminal law.
c. Oversee some public facilities or activities.
d. Has legal authority to issue subpoenas; grant witnesses immunity.
6. Arraignment:
7. Pre-trial conference:
8. Trial:
The Complaint

Tenn. R. Crim. P. , Rule 3: The affidavit of complaint is a written statement alleging that a person has committed an offense and all
the essential facts constituting the offense charges. The affidavit of complaint shall be made upon oath before a magistrate or a neu
and detached court clerk who is capable of the probable cause determination required by Rule 4.

Complaint: the complainant signs a formal charge of criminal activity under oath. The complaint describes the basic facts of the cri
what offense is being charged and possibly the relevant section of the criminal code. If the complaint provides adequate proof that
is probable cause to believe that a crime was committed and that the defendant committed it, the magistrate may issue an arrest
warrant. The complaint may also “toll” the statute of limitations. In misdemeanor cases, the complaint serves as the formal charge
there may be no indictment to replace it. For felonies, the complaint will be the first formal charge but may be later replaced by the
jury indictment or the prosecutor’s information.

Briefly describes the basic or essential facts:

• Alleged crime
• Accused (if name is unknown – then it must contain any name or description by which accused can be identified w
reasonable certainty
• Victim
Allegations need not be personally observed; may be based on hearsay evidence
Signed
• Voided if unsigned
• Anyone can sign complaint and initiate criminal proceedings
Under oath
• Complainant swears or affirms that s/he is telling the truth
• Before magistrate judge

Begins or initiates the formal criminal process by charging the accused with a crime
• Serves as the written basis for an arrest warrant; described as the “principle function” of the complaint
• Notifies the accused of the allegations
• Facilitates the Initial Appearance
• Stops or tolls the running of the statute of limitations
• In misdemeanors, the complaint/warrant may be the only pleadings filed and are the only formal charging documents, unle
goes to a grand jury
• In felonies, the complaint is the first formal charge, but may be replaced by OR charges may be initiated by:
1. Grand jury indictment,
2. Grand jury presentment, or
2. Prosecutor’s information

Tenn. R. Crim. P., Rule 4: an arrest warrant shall by issued by a magistrate or clerk if it appears from the affidavit of
complaint that there is probable cause to believe that an offense has been committed and that the defendant has
committed it. More than one warrant or criminal summons may issue on the same complaint. The probable cause finding
can be based on hearsay if there is a substantial basis for believing the hearsay is credible and for believing that there is a
factual basis for the information furnished. The arrest warrant must be signed by the magistrate or clerk and shall contain
the name of the defendant or enough information by which he can be identified with reasonable certainty. The arresting
officer does not have to have the warrant in his possession at the time of the arrest but must show it to the defendant as
soon as possible.

McNabb-Mallory Rule: statements made by suspects during a period of unnecessary delay in bringing them before a
magistrate are inadmissible at trial. This rule is not binding upon the states and most states have rejected it in favor of a
totality test to determine the admissibility of a confession under the circumstances.

The First Hearing: The Initial Appearance

Tenn. R. Crim. Rule 5.

(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 and 40-408, 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 the
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.

Administrative, non-adversarial proceedings

Purposes of initial appearance:

1. Provide information to accused
a. Future proceedings
b. Basic constitutional rights
c. Formally notified of the charges
2. Appoint counsel
3. Schedule future proceedings
a. Preliminary hearings – 10 days if defendant is still in custody
4. Make release decision (pretrial release decision)
a. Gerstein probable cause determination

Gerstein proceeding – a defendant who was arrested w/o a warrant may face a Gerstein proceeding, which tests the
validity of his detention; usually combined with either the initial appearance or the preliminary examination. 4th
amendment requires that a neutral and detached judicial officer must determine probable cause before a person can be
subjected to an extended restraint of liberty after a warrantless arrest. Determination must occur within 48 hours of
arrest.

After 48 hours the burden is on government to explain why there was a delay.
Remedy for delay – suppression of evidence; any evidence obtained during delay could be thrown out. (Arguably from
time of arrest)

5. Conditions of release

Procedures
1. Felony-misdemeanor distinctions
2. Timing – without unreasonable delay

Initial appearance: (if no bail previously set) brief hearing in which the accused is notified of the charges and advised of his basic
constitutional rights. If the accused is still in custody, bail will be considered. An attorney may be appointed if the accused is indigen
date will be set for the preliminary hearing. At the initial appearance, the prosecutor may only address the issue of release condition
There may be no defense counsel present. if the defendant was arrested without an arrest warrant, the judge may have to determin
whether there is probable cause to detain the defendant. If probable cause exists, the judge will have to issue an arrest warrant in
to hold the defendant in custody.

If warrant is defective and you move to have it dismissed because it is defective; then the person could swear out another
warrant -- your defendant would have to pay two bonds.

The initial appearance serves many purposes;

1) Providing information to the accused: the accused is formally notified of the charges and may be given a copy of the
complaint, he is informed of relevant constitutional and statutory rights.
2) Appointment of counsel: if the accused is indigent, counsel may be appointed at this time.
3) Schedule future proceedings
4) Make a decision about bail
Gerstein proceeding: tests the validity of the defendant’s detention if he was arrested without a warrant. The Gerstein heari
may be combined with the initial appearance or the preliminary hearing. Requires the accused to be brought before a magistrate in
reasonably prompt manner, usually48 hours.
If a defendant charged with a misdemeanor can plead guilty at the initial appearance, the initial appearance becomes the
arraignment.

Tenn. R. Crim. P. , Rule when arrested, the accused shall be brought without unnecessary delay before the nearest appropriate
magistrate. The magistrate may act as the judge in small offenses. IF the offense is a misdemeanor but not a “small offense” the
magistrate shall ask how the defendant pleads. If the defendant pleads guilty, the magistrate shall set a preliminary examination wi
10 days if the defendant remains in custody and within 30 days if the defendant is released. If the defendant pleads guilty and waiv
right to be prosecuted only by an indictment or presentment and to be tried by a jury, the magistrate shall hear the case and fix the
sentence upon a guilty plea. The defendant can then only appeal the sentence.
If the defendant pleads not guilty, the case is set for preliminary examination with 10 or 30 days, as above, unless the
preliminary examination is waived in which the magistrate can bind the defendant over to the grand jury.
For felonies, the defendant does not have to plead before the magistrate. The magistrate shall inform the defendant of his
rights. The defendant may waive the preliminary examination and be bound over to the grand jury.

Rule 5 – magistrate can accept a guilty plea for small offense for which there is $50 fine and imprisonment is not possible. No coun
as no chance of going to jail. Misdemeanor that is more than small offense; DA must agree; magistrate can take guilty plea and
sentences the defendant. Sentence could be appealed.

Forms of Release Pending Trial

Bail Reform Act of 1984 – mandates that federal defendants be released on personal recognizance or upon execution of an unsecu
appearance bond in an amount specified by the court unless it is determined that either form of pretrial release will not reasonably
assure appearance of the defendant at trial or will endanger the safety of the community.
 1. Full cash bond – full amount of bond in cash or credit card
a. If defendant appears – all deposited money is returned
b. If defendant fails to appear – forfeiture of full cash bond
2. Deposit bond – percentage (usually 10%) of full bond
a. If defendant appears – deposit is returned – although court can retain a small amount for administrative costs
b. If defendant fails to appear – court orders the remaining amount to be paid by defendant
3. Surety bond – bail bondsman signs a promissory note to the court for the full bail amount and then charges the defendant a
percentage of the full amount as a fee
a. If defendant appears – no refund of fee
b. If defendant fails to appear – bond company is ordered to pay full amount to court; however, court usually gives
company time to locate and return defendant.
c. Davidson County – 10% plus $38 fee; two people must sign (guarantee) the bond for them.
4. Unsecured bond – defendant promises to pay the bond amount if he fails to appear in court
5. Release on recognizance – defendant gives personal promise to appear
6. Citation release – traffic violation
7. Conditional release – subject to conditions such as restrictions on travel, periodic reporting to law enforcement agencies,
undergoing medical treatment or schooling, etc.
8. Property bond – may require the property have a market value of at least one and one/halve times the amount of bail. Bon
$50,000 – property bond has to be $75,000 (equity).
9. Pre-trial release - if eligible (same as release on recognizance); slight monitoring – administrative fee.
10. $75,000 bond or more – and you are paying it in cash (even if it is the 10%) – you have to have a source hearing; where yo
come to court and present evidence of where money is coming from.
a. Tax returns, savings account statements

Pretrial detention and release; bail amounts are based upon:

1. likelihood of appearance at trial; and
2. defendant’s potential danger to community

Bail hearing;
1. whether the accused should be released pending trial; and
2. if release is deemed appropriate, the terms and conditions, which may include the specific dollar amount of bail.
Rules of evidence do not apply; both sides may present witnesses & documentary proof.

Under 8th amendment – “fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assurin
presence of the defendant”.

Bail Reform Act of 1984

1. Authorizes pretrial detention of defendants who will not likely appear at trial;
2. Permits the detention of defendants who present a risk of harm to society.

Federal rules on bond are different than state rules:

1. not everyone has a right to a bond
a. those not likely to appear at trial
b. those who present a risk of harm to society
c. gives a rebuttable presumption that a person should be detained pending trial when they are charged
i. with a crime of violence of which the maximum punishment is death
ii. drug crime for maximum punishment is 10 years or more

not a due process violation – not punishment; merely regulation

not cruel and unusual because Congress has a justifiable compelling interest in protecting society

Factors relevant in bond amount decisions: TCA 40-11-118 include

Length of residence in community
Employment status & history of financial conditions
Family ties and relationship
Reputation, character and mental condition
Prior criminal record and history of appearance at court
Nature of offense and apparent probability of conviction and likely sentence
Presumption of probation?
Prior record and its correlation of potential risk to community
Identity of responsible members of community who will vouch for defendant’s reliability
 Any other factor

Misdemeanors - $1,000
Felony involving property crime - $10,000
Felony against a person - $50,000
Homicide - $100,000

Bond: 8th amendment – excessive bail shall not be required but does not guarantee bail.

TN Constitution Article 1, Section 16

That excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

In TN everyone is entitled to bond unless they are going to be tried for death penalty.
TN Constitution Article 1, Section 15
That all prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident, or the
presumption great. And the privilege of the writ of Habeas Corpus shall not be suspended, unless when in case of
rebellion or invasion, the General Assembly shall declare the public safety requires it.

Not every 1st degree murder is a capital offense. If state is considering death penalty, no bond.
Bond is set at initial appearance.
Bond is reviewed by general sessions judge normally at preliminary hearing.
Bond can be reviewed after you are bound over; criminal court judge
Bond can be reviewed by Court of Criminal Appeals – if you challenge it. (not very often)

Reasons for setting bond high:

1. to assure the defendant returns for court appearances
2. prevent tampering or destruction of evidence, witnesses; insure integrity of future trial
3. protect society from violence/criminal behavior
Reason why a person should be released:
1. presumed innocent

Complications due to defendant in custody pending trial:

1. lose his job; loses home; becomes homeless
2. cannot participate in defense/investigation; location of witnesses;
3. more likely to be convicted (statistics show)

US v Jessup:
1. Whether the drug offender/flight presumption represents a reasonable congressional response to a problem of
legitimate legislative concern. Holding: Congress has done research to determine the significant risk of flight inherent to
drug offenders. We conclude that the government’s interest in the presumption is a strong and legitimate one.

2. Whether the drug offender/flight presumption increases the risk of an erroneous deprivation of liberty. Holding: The
presumption does not significantly increase the risk of an erroneous deprivation of liberty. The presumption applies only
where there is probable cause to believe that a person is guilty of a serious crime.

The basic purpose of the Bail Reform Act of 1984 is to detain those who present serious risk of flight or danger but not to
detain those who simply cannot afford a bail bond.
1. Rebuttable presumption shifts to defendant burden of production – not burden of persuasion.
a. Burden of production – defendant would only have to introduce a certain amount of evidence contrary to
the presumed fact.
b. Burden of persuasion – defendant would have to prove he would not flee.

US v Miller:
Whether the district court erred in denying defendants’ motion for bail.
The Federal Bail Reform Act of 1984 states that a person who has been found guilty and sentenced to a term of
imprisonment and who has filed an appeal should be detained, UNLESS the judge finds:
1) that the defendant is not likely to flee or pose a danger to the safety of any person or the community if released
AND
2) that the appeal is not for the purpose of delay, AND
3) that the appeal raises a substantial question of law or fact, AND
4) that if the substantial question is determined favorably to defendant on appeal, that decision is likely to result in
reversal or an order for a new trial of all counts on which imprisonment has been imposed.
US v Salerno:
At the arraignment, the Government moved to have Salerno and Cafaro detained pursuant to the Bail Reform Act of 1984 section
3142(e) on the ground that no condition of release would assure the safety of the community of any person. There was a hearing a
the Government provided evidence that they were the “boss” and “captain” of the Genovese family, a crime family. The Court finds
the detention imposed by the Bail Reform Act is regulatory, not punishment. Preventing danger to the community is a legitimate
regulatory goal. In addition, the Act limits the circumstances under which the detention may be sought to the most serious crimes a
the detainees must be housed in a facility separate, to the extent practicable, from persons awaiting or serving sentences or being
in custody pending appeal. The Court concludes that the detention is regulatory and does not constitute punishment before trial in
violation of the Due Process Clause. The Government’s interest in community safety can, in appropriate circumstances, outweigh
individual’s liberty interest

Preliminary Hearing

Tenn. R. Crim Rule 5.1

(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.

Adversary proceeding before the judge. The purpose is to determine whether there is probable cause to believe that a crime was
committed and that the accused committed it. In some jurisdictions, a less restrictive set of evidence principles are applicable rathe
than the formal rules of evidence. Since the preliminary hearing is in a court with no record, the prosecutor can get the matter boun
over to the Grand Jury for a probable cause determination even if the judge dismisses for lack of probable cause.

4th amendment – probable cause determination; basis for requirement of probable cause hearing. Finding of probable
cause may be based on hearsay; must be factual basis for information furnished.

Must be within 10 days if defendant is in jail; supposed to be within 30 days if defendant is out on bond – NEVER HAPPENS; defen
waives this.

Preliminary hearings are for those arrested on a warrant, summons or citation.

The preliminary hearing (examination) is a right given the defendant (Tenn. R. Crim. P. Rule 5, 5.1). The formal, traditional function
the preliminary hearing is to ensure the State has at least sufficient proof to demonstrate that “probable cause” exists to believe tha
crime has been committed and that the accused committed the crime. There is no degree of evidence necessary to establish proba
cause at a preliminary hearing but probable cause for an arrest exists where the officers had facts and circumstances within their
knowledge and of which they had reasonably trustworthy information, which was sufficient to warrant a prudent man in believing tha
arrestee had committed an offense.
If the State meets its probable cause burden of proof, the case will be bound over to the grand jury. If not, the case will be
dismissed but can still be pursued through the grand jury. If the charges were dismissed at the preliminary hearing but reinstated by
indictment, the defendant may not have the right to another preliminary hearing.
The preliminary hearing is a “critical stage” of the proceedings, meaning that there is a right to counsel. A practical purpose
the preliminary hearing is to make three determinations.
1) Whether the State has proven an offense has probably been committed
2) Whether there is reasonable ground to believe that the defendant is probably guilty of its commission
3) Whether the bail bond should be modified or changed prior to trial.
 The rules of evidence do apply, but defense counsel may not wish to use all technical objections available in order to make better u
the discovery available at this stage of the proceedings. If counsel objects to evidence, they should keep in mind that Tenn. R. Crim
5.1 requires probable cause to be based upon evidence which may not be inadmissible hearsay except (1) documentary proof of
ownership and (2) written reports of expert witnesses. The court’s ruling does not bar the State from submitting suppressed eviden
the grand jury when it seeks an indictment for the same offense. The ruling of the general sessions court is not binding upon the cri
or circuit court if the grand jury returns an indictment or presentment against the accused. The criminal or circuit court must decide
admissibility of the evidence anew.
The preliminary hearing is required to be recorded (taped). If defense counsel calls witnesses, the State will have the opportunity to
cross examine the witness and have recorded testimony for use at trial. Failure to tape or preserve the tape will cause the prelim to
heard again.

The preliminary hearing also serves to:

1) screen out weak cases
i. protect individual from overzealous, careless, unethical prosecutors who misuse their broad authority and
institute baseless criminal charges
2) discover information about the other side’s case
i. crime victims and investigating police officers may refuse to talk to defendant’s counsel about the crime; bu
counsel CAN question/cross-examine them at prelim IF they testify.
ii. discovery is extremely limited about what you will learn.
3) preserve testimony for use at trial
i. if witness doesn’t testify at prelim and dies before trial – prosecution may be barred from using witness’
statements as evidence at trial.
ii. witnesses have not been coached so you may get the best information from them then.
4) test or prepare witnesses
i. assess whether a particular witness comes across as well or poorly
1. do they sound credible? This can affect plea negotiations, sentencing; lets you know how much
preparation you will have to do with that witness.
5) facilitate later impeachment
i. less prepared witnesses may make contradictory statements which defendant can get impeached.
6) solidify identification
i. used by prosecution to solidify a witness’s ID of the accused
ii. defendant can waive his right to appear (so he cant be ID’d in court)
1. ask for a photo-array or physical line-up
7) send message to witness
i. communicate/cross-examine
8) reality therapy for the defendant
i. may realize how weak or strong the case is
9) affect plea bargaining
i. may lead defendant to see plea bargaining as more appealing
10) affect the bail decision
i. initial bail decisions may have been made on little info and can always be reopened by either defense or
prosecution on basis of new data

Defendant is entitled to counsel (this is a critical stage) at the preliminary hearing.

Attorney is valuable at prelim because the real purpose of a prelim is DISCOVERY.

Rules of evidence do apply to a prelim; Rule 615 allows either party to exclude potential witnesses from a hearing until it is there tu
testify. IF you ask for the rule, it applies to ALL witnesses.

Mental health:
A defendant must be competent to go through the proceedings or sanity/insanity at the time of the crime.
Finding probable cause is not permitted based on hearsay: EXCEPTIONS:
• Documentary proof of ownership
• Written report of an expert

If Evidence is suppressed, no probable cause, case dismissed.

Probable cause – low level of proof. Judge does not have to find probable cause for the charge listed; can find for lower charge (c
find for a higher charge).

Alibi defense – at least 10 days prior to trial, must give written notice to the State where defendant was and the list of witnesses tha
be called for his defense.
You can put the defendant on the stand to answer some questions such as where he lives, works, etc. – this is for the bond part of
hearing.

Judge sets case for preliminary hearing; judge must inform defendant of:
• Charges and contents in the affidavit of complaint
• Right to counsel
• Right to appointed counsel if indigent
• Right to remain silent
• Any statement given voluntarily could be used against defendant.
• General circumstances under which they can obtain bond
• Right to a preliminary hearing.

Preliminary hearing; another probable cause determination

If defendant in custody and not made bond – must be within 10 days; if state cannot go through with prosecution in 10 days, the ca
is dismissed.
If defendant makes bond – the preliminary hearing is supposed to be within 30 days; routinely waived. No reason to hurry the case
defendant is out on bond.

Coleman v Alabama: whether Petitioners were unconstitutionally denied assistance of counsel, since they were not provided coun
at the preliminary hearing prior to their indictment, which was a “critical stage” of the prosecution. The inability of the indigent accus
on his own to realize these advantages of a lawyer’s assistance compels the conclusion that the Alabama preliminary hearing is a
“critical stage”.

The functions of counsel are to:

1. expose weaknesses in the prosecution’s evidence so the case can be dismissed;
2. preserve helpful testimony and fashion impeachment evidence for use at trial;
3. discover the prosecution’s case to assist in trial preparation; and
4. make arguments on such matters as bail and the need for psychiatric evaluation.

People v Ayala: whether evidence was sufficient to establish probable cause (in this case, dismissal for lack of probable
cause). Prosecution claims that b/c ownership of car was transferred w/o title, it may be inferred that Ayala must have
known the vehicle was stolen. Although Colorado requires seller of car to transfer title…failure to deliver a title does not
prevent acquisition of ownership rights. “There must be evidence sufficient to induce a person of ordinary prudence and
caution conscientiously to entertain a reasonable belief that the D committed the crime charged.”

Joinder and Severance

Tenn. R. Crim Rule 8.

(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.

Tenn. R Crim Rule 13

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.
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.
Tenn. R Crim Rule 14
(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.

Joinder: process of joining two people or crimes together into one indictment at trial.
• May be efficient but does not necessarily ensure a fair trial.
• Defendant may be prejudiced:
may be become embarrassed or confounded in presenting separate defenses;
jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the
defendant from which is found his guilt of the other crime/crimes charged;
jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it
would not so find.
• Generally increase the chance of a conviction.

Severance: process of undoing a joinder (crimes/people would be tried separately).

• May permit the defendant to testify in one trial and remain silent in the other.
• May induce prosecutor to negotiate a better deal for defendants in plea bargaining); avoids the time and cost of
two trials.
• Severance motions may provide discovery.

Rule 8 – details when offenses and offenders may be joined in an indictment or information.
Rule 13 – indicates that crimes or defendants may be tried together IF under Rule 8, they could have been indicted
together.

Rule 14 – gives trial court discretion to grant a severance if joinder would cause prejudice.

Joinder of Offenses
Is possible if EITHER of the following is satisfied:
1. Rule 8(a) permits joinder if the crimes are of the same or similar character. OR
2. Joinder of offenses is possible if the crimes either were based on the same act/transaction or were based on
more than one act/transaction that were connected together or constituted parts of a common scheme or
plan.

US v Terry: joinder of drug charges with firearms charge. Violation of Rule 8 requires reversal only if the misjoinder
results in actual prejudice because it had substantial and injurious effect or influence in determining the jury’s verdict.

Joinder of Defendants
1. Is permissible only if they participated in the same act or transaction, or series of acts or transactions
constituting the crime(s).
2. Must be some connection between the offenders.

US v Satterfield: joinder of co-defendants on robbery charges. Five bank robberies were charged in indictment;
Satterfield was involved in only 2 of them. Whether or not multiple offenses joined in an indictment constitutes a series of
acts or transactions within meaning of rule relating to joinder of charges against multiple defendants turns on the degree
to which the acts or transactions are related; relation is most often established by showing that substantially the same
facts must be adduced to prove each of the joined offenses. Mere showing that events occurred at or about the same
time or that the acts violated the same statutes is not sufficient to show that the acts constitute a series of transaction
within meaning of rule permitting joinder of multiple defendants.

Discretionary Relief from Joinder: Severance

Three sources of prejudice are possible that may justify the granting of a severance under Rule 14 as to JOINDER OF
OFFENSES:
1. the jury may confuse and cumulate the evidence and convict the defendant of one or both crimes when it would
not convict him of either if it could keep the evidence properly segregated.
2. the defendant may be confounded in presenting defenses as where he desires to assert his privilege against self-
incrimination with respect to one crime but not the other; or
3. the jury may conclude that the defendant is guilty of one crime and then find him guilty of the other because of his
criminal disposition .

Sources of prejudice possible that may justify the granting of a severance under Rule 14 as to JOINDER OF
OFFENDERS:
1. where one defendant makes an inculpatory statement inadmissible against his co-defendant;
2. where the defendants present conflicting and irreconcilable defenses and there is a danger that the jury will
unjustifiably infer that this conflict alone demonstrates that both are guilty; and
3. where only one defendant testifies and urges the jury to draw an adverse inference from his co-defendant’s
silence.

Person requesting severance under Rule 14 has burden of proof.

Remedies during a trial:

1. grant a mistrial and schedule proceedings at a later date;
2. require the prosecution to elect which charge(s) or defendant(s) to try at this time (severance would then be
granted for remaining defendant(s) or charge(s).

Examples supporting a severance:

1. mutually antagonistic defenses by two defendants such that acceptance of one defendant’s defense would
preclude acquittal of the other defendant;
2. two robberies joined in one trial when the proof of one of the crimes was very weak;
3. use of one codefendant’s confession implicating another codefendant;
4. exceptionally complex and lengthy evidence involving multiple defendants where a jury could not reasonably be
expected to separate the evidence.
Zafiro v United States: 4 defendants convicted of federal drug charges were tried together; all 4 moved for severance.

Severance might be appropriate because of a Bruton problem. (confrontation clause of the 6th amendment). A person
requesting severance has the burden of proof.

Bruton Error: type of error arising in a joint trial by admission of a confession of a co-defendant implicating the defendant
where the co-defendant did not testify and the defendant maintained his innocence. Bruton problem: no opportunity to
cross examine.

Solutions to Bruton problem:

1. sever
2. redact (edit to remove any reference of other defendant)
3. omit confession from evidence

Motion for severance must be made before trial unless basis for motion is not known until after trial starts. The defendant
has a right to severance unless the offenses are a part of a common scheme or plan and the evidence of one would be
admissible at the trial of the others. The court shall grant a severance of offenses if:
1) If motion is made before trial and it is deemed appropriate to promote a fair determination of the defendant’s
guilt or innocence of each offense.
2) If during trial it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of
each offense.
3) If the State is granted a continuance and the defendant demands a speedy trial.

If one defendant moves for a severance because of an out-of-court statement of a codefendant makes reference to the
defendant but is not admissible against the defendant, and the State intends to offer the statement in evidence at trial, the
court shall require the D.A. to elect one of the following courses: (Bruton problem):
1) A joint trial at which the statement is not admitted into evidence or if admitted the statement would not
constitute error or
2) A joint trial at which the statement is admitted into evidence after all references to the moving have been
deleted and the confession will not prejudice the moving defendant or
3) Severance of the moving defendant.

The court shall grant severance of defendants if:

1) Before trial, if 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
2) During trial, it is deemed necessary to achieve a fair determination of the guilt or innocence of one or more
defendants.

Does not bar double jeopardy.

Failure to prove grounds for joinder is also a reason to sever.

Whether offenses should be severed:

Common plan or scheme:
1. distinct design or signature crime
a. establishes identity of guilty party
2. continuing plan or conspiracy
a. common goal or purpose at which the crimes are directed
b. state has to show proof of a working plan operating toward the future
3. same transaction; requires state to show that the crimes occurred during a single criminal episode
a. stole car to go to liquor store to rob the store owner to buy the crack
b. understand the full story

3-part test for state to meet:

1. that there is a common scheme or plan (of one of the above)
2. would evidence of one be admissable at the trial of the other if they were severed
3. whether the value of the evidence outweighs it prejudicial effect.
a. Is it more relevant than prejudicial?

Motions

Motion: formal request for a judge to issue an order.

• can be oral or written.
• help the parties to define/narrow the issues.
• help in the plea bargaining process.

Types of motions:
• Motions seeking dismissal
• Motions affecting evidence
• Motions affecting pretrial proceedings
• Motions affecting trial structure
• Motions involving defendant’s activities
• Motions to assist in gathering evidence
• Motions incorporating other motions

Motion in Limine: things you want the judge to rule on before trial. The danger of a motion in limine is that once you have
made a motion in limine that acts as an objection (motion to suppress) and the judge has ruled to admit it, you don’t have
to object again during the trial. However, if the judge’s ruling isn’t clear, you must object again.

Motion for New Trial: (must be made within 30 days of sentencing). If the motion for new trial is not filed timely, the appeal
will be waived. The defendant can waive the right to an appeal in writing. An appeal can be timely filed and then amended
later. The motion for new trial must include all grounds, which you feel should be overturned. After the motion for new trial
is denied, you can file a Notice of Appeal. The defendant can get an appeal bond unless convicted of a violent crime. In
the federal system, the notice of Appeal must be made within 10 days.

Motions serve to:

1) obtain specific results: to get a court ruling on the issue raised in the motion; admit or exclude evidence
2) prerequisite to raising certain issues: failure to file may preclude the party from obtaining a court order that would have b
given had the correct motion been filed.
3) preserve issue for appeal: cannot appeal issues that were not raised at trial.
4) counter claim of inadvertent mistake:
5) provide discovery: limited in criminal cases; If there is a hearing on the motion, counsel may learn something
about other side’s evidence.
6) assist in trial strategy:
7) affect plea bargaining: may encourage negotiations by creating or exposing weaknesses in the prosecution’s case.
8) educate the participants: educates the judge about the case
9) protect the attorney from malpractice action; A motion has created a documented record of efforts to represent
the accused competently.
10) gain time to further prepare case:

Ethics of Motion Practice:

(1) Don’t file frivolous motions
(2) Don’t file motions for the purpose of delay (except motion for continuance)
(3) Failure to file appropriate motions can constitute ineffective assistance of counsel in violation of the 6th amendment

Supporting Documents.
• Affidavit – sworn statement. NO CROSS EXAMINATION. Provides facts or opinions helpful or necessary in resulting
the motion. An affidavit may be made by a party or anyone else, including an expert or even a atty. The only limit is
that the affiant (person whose statement is in the affidavit) must be competent to testify as a witness. Affidavit is
signed by the person providing the information and usually is also signed by a notary.
• Supporting memoranda and briefs.
• Proposed order. Draft of a court order that implements the motion. The trial judge may sign the draft order if the
motion is granted. Many courts prefer that the draft order be signed by all lawyers in the case.

Rule 12.1 notice of alibi: written notice when using defense of alibi must say where you were, who witnesses are, and how
DA can reach those witnesses. DA has to provide written notice of rebuttal witnesses. If either of these is not submitted,
then can’t use alibi. Withdrawn notice of alibi cannot be used in any civil or criminal proceeding.

Rule 12.2 notice of intent to use mental disease or defect defense-if you’re going to offer expert testimony, then need to
file written notice. DA then has opportunity to submit D to their own expert. What D says to their expert is not admissible
except for impeachment.
12.3 notice of intent to seek an enhanced sentence. DA has to file 10 days before trial. If they don’t more than 10 days
before, D can ask for continuance.

Federal Rules of Criminal Proc. (Rule 74):

• This rule requires that motions be in writing unless made during a trial or hearing, or the court excuses the request for
written motion. Rule 12 says pretrial motions may be written or oral @ discretion of judge.
• Written provides formal record. Oral permits counsel to respond and react quickly.
• Content: Local rules and custom determine the acceptable content. Should contain a clear statement of what is
requested and why. Usually contain:
• Court where filed
• Style of case (names of parties)
• Case #
• Title that summarizes content of motion.
• Statement of relief requested and party requesting it.
• Statement of underlying facts.
• Statements of reasons why entitled to relief
• Confession barred b/c in violation of 4th amdt’s self-incrimination, 14th’s due process clause, and
6th’s rt. to counsel.
• Concluding paragraph.
• Signed by lawyer offering motion
• Indication of service on opposing party.

Ruling by court; counsel submitting a motion must ensure that a decision is made if counsel wants to preserve the
issue for appellate review. Try to get judge to indicate why motion was granted or denied.

Burden of proof; movant typically has burden of establishing the merits of the motion.

Perron v Perron Whether assistance of counsel was in actuality so defective as to warrant reversal. Attorney for
defendant filed a motion in limine but court did not rule on it. Court held that although the defense counsel should
have demanded a ruling on the motion, the failure to do so was of little significance since the court would have denied
it anyway.

Two-pronged test to address issue of ineffective counsel:

1. the defendant must prove that counsel’s performance was deficient; and
2. that the deficient performance prejudiced the defense thus depriving him of a fair trial.

Jurisdiction and Venue

Jurisdiction: the courts power or authority to resolve a case or issue.

 Exclusive jurisdiction —the only court authorized to handle a case (military courts – court martials)
 Concurrent jurisdiction—two courts each have authority to resolve case. Sometimes, a case begun in 1 ct. can be
transferred to other court with concurrent jurisdiction.

Jurisdiction is either by:

1. statute, court rule or constitution
2. geographic

Venue: physical location where case may be heard

• Rules in criminal cases are the product of a statutes, rules and const. provisions. Improper venue may be challenged
in a motion to dismiss an indictment or to acquit. Venue in a federal ct. is based on the fed. judicial district, while
venue in state court is based on a county or judicial district.
• Venue principles are actually est. by laws that limit the location of jury trials.
• Article III § 2 of Const: Trial shall be held in the state where the crimes have been committed. When not committed
within any state, trial shall be at such Place as Congress directs.
• 6th amendment: Right to a trial by impartial jury & venue in the state where the crime was committed. Tenn Const.
Article 1, Section 9
• Only court & defense can change venue; prosecution cannot.
• Venue is moved to nearest county that is not affected by trial/crime.
• Change of venue motion must be made as soon as it is known.

MOTION FOR CHANGE OF VENUE MUST BE ACCOMPANIED BY AN AFFIDAVIT.

Criminal Acts or results in multiple counties, districts, or states

• By statute or court rule, states have established several general principles about venue when acts occur in more than
one county or judicial district.
• Separate sovereign rule in double jeopardy - two states can convict an offender for a crime committed in both states.
• Venue is appropriate in any of the counties where an act or effect occurred., under the most prevalent venue laws.
• Prosecutor can decide venue where it is impossible to determine where the crime occurred. Defendant can file a
motion for change of venue if dissatisfied.

Continuing crimes = ongoing until something happens to end them, e.g. conspiracy, which may involve many
conspirators performing acts helpful to the conspiracy in many juris. Venue can be in any district or county where act
occurred that was part of the crime.

Outside any county, distr., or state. Article III, § 2 says that a federal crime committed in no state shall be tried at
such place or places as the Congress may be Law have directed.

Removal to Federal Court: On rare occasions, state criminal proceedings may be removed to federal court; because
of federalism concerns, such removals are rare and federal courts are hesitant to order them.

Travis v U.S. Whether an offense against the US which is begun in one district and completed in another, can be
inquired of and prosecuted in ay district in which such offense was begun or completed. Defendant executed false
affidavit documents in Colorado and filed them (by mailing them) in Washington DC. Court held that venue lay in DC:
when a place is explicitly designated where a paper must be filed, prosecution for failure to file lies only at that place.

U.S. v Williams Crime involving more than one jurisdiction and a criminal statue where venue is unclear.
Substantial contacts test:
1. site of defendants act
2. elements and nature of crime
3. locus of the effect of the criminal conduct
4. suitability of each district for accurate fact finding.

Grounds for transfer of venue:

1. Transfer of plea or sentence; defendant is going to plead guilty & receive probation; easier to work with probation
dept where he lives & works.
2. Transfer of trial;
a. Because of hostile publicity; accused has a right to a fair trial by an impartial jury
i. Other ways to deal with adverse publicity – postpone trial
b. For convenience or in the interests of justice.
3. Transfer of jury; select a “foreign” jury from another area and transport the jurors to the original venue of the
offense.

Platt v Minnesota Mining & Manufacturing Co.

Transfer of venue; factor of fair and impartial trial as the most important item was not appropriate; in addition to the
essential elements of convenience, expense and early trial, constituting “interest of justice” in a civil case, a criminal
case was impressed with the fundamental historical right of a defendant to be prosecuted in its own environment or
district

Discovery

Formal discovery: codified in jurisdiction’s statutes or rules involving written motions & responses.

Informal discovery: sharing of information without resorting to the formal processes; ie. Open file practice which
allows defense counsel access to all or most of the information available to the prosecutor

Governed by three sources of rules:

1. US Constitution mandates certain disclosure
 2. Formal discovery gives each side the right to obtain certain information from the other side re physical evidence,
expert testimony, prior statements of witnesses; can also include disclosure of names of witnesses to be used at
trial; advance notice of certain proof or theories to be used at trial.
3. Trial court’s inherent authority to issue orders requiring disclosure of certain information such as names and
addresses of witnesses who will be called to testify at trial.

DISCOVERY BY THE DEFENDANT:

DISCOVERY- Rule 15 of Tenn. R. Crim. P. The defendant is limited in what he can get under Rule 15. A civil defendant can get
anything.

Constitutional issues re discovery & disclosure: The Brady Rule

The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the
primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the
prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the
accused that, if suppressed, would deprive the defendant of a fair trial

Brady v Maryland 5th amendment due process issue

Nondisclosure by a prosecutor violates due process. Suppression of evidence favorable to the accused violates due
process where the evidence is material to either guilt or punishment.

US v Bagley
Reasonable probability test: favorable evidence is material if there is a reasonable probability that had the evidence been
disclosed to the defense, the result of the proceeding would have been different. Must turn over all evidence - - even if it
is false (question for jury to decide).
Applies to appeals in cases where the defense made a specific request for materials.

Giglio v US – state failed to disclose impeachment evidence – a promise made to a key state witnesses that he would not
be prosecuted if he testified for the state.
Giglio motion – reveal the deal motion.

Jencks Rule (Rule 26.2 Motion for Production of Statements of Witnesses): Once a witness has testified on direct
examination, the other side has a right to move for their Jencks statements; the prior written statements that bear on the
subject matter of their testimony (parts can be edited that have no bearing on the matter).

Failure to produce Jencks statements; strike the testimony or (if it is the state) declare a mistrial.

A criminal defendant in a Federal Court is entitled to access to government documents for assistance in cross-
examination of witnesses in order to impeach for prior inconsistent statements. This rule does not apply in General
Sessions.

Some, but not all rules of criminal procedure do not apply to General Sessions.
All rules of evidence apply to General Sessions.
An appeal from General Sessions is de novo. A defendant can’t appeal a guilty plea but can appeal a sentence.

DISCOVERY BY THE GOVERNMENT

Williams v Florida
Privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and
disclose his alibi witnesses.

United States v Nobles

Work product doctrine protects material prepared by agents for the attorney as well as those prepared by attorney himself
(this privilege was waived by defense counsel when they elected to present the investigator as a witness).
5th Amendment privilege against compulsory self-incrimination is personal to the defendant and does not extend to the
testimony or statements of 3rd parties called as witnesses at trial; does not extend to information that may incriminate him.
Arizona v Youngblood
Issue: whether the due process clause requires the state to preserve evidentiary material that might be useful to a
criminal defendant. Failure of police to preserve potentially useful evidence was not denial of due process of law – absent
defendant’s showing bad faith on part of police. File a motion to preserve the evidence.
United States v Esquive
Government was entitled to admit statements and testimony of a deceased witness. Whether state must provide witness
list in discovery in criminal case is matter falling within the court’s sound discretion; some factors for consideration are
needs of defense in preparation for trial; possible intimidation of witnesses; intrinsic reasonableness of request. United
States v Carrigan
Writ of mandamus is used in exceptional circumstances only and the petitioner must show a clear and indisputable right
to relief. Witnesses in a criminal proceeding belong to no one, and subject to the witnesses right to refuse to be
interviewed, both sides have the right to interview witnesses before trial.

Rule 12.1 Notice of Alibi; upon written demand of the state, the defendant must supply a written notice of defendant’s
intention to offer a defense of alibi; this is triggered by the state; if the state does not begin the process, the
defendant may offer a full alibi defense with out providing any notice to the state.

Rule 16:
Upon written request of defendant, the government must disclose to the defendant and make available for inspection,
copying or photographing:
1. any relevant written or recorded statements made by the defendant or copies thereof, within the possession,
custody or control of government;
2. such copy of the defendant’s prior criminal record, if any, within the possession, custody or control of government;
3. books, papers, documents, photographs, tangible objects, buildings or places or copies or portions thereof, within
the possession, custody or control of government, and which are material to the preparation of the defendant’s
defense or are intended for use by the government and which are material to the preparation of the defendant’s
defense or are intended for use by the government as evidence in chief at the trial;
4. any results or reports of physical or mental examinations and of scientific tests or experiments, within the
possession, custody or control of government, and which are material to the preparation of the defendant’s
defense or are intended for use by the government and which are material to the preparation of the defendant’s
defense or are intended for use by the government as evidence in chief at the trial;
5. written summary of the testimony that the government intends to use under Rules 702, 703 or 705 of the Federal
Rules of Evidence during is case in chief at the trial (expert witnesses or issue of defendant’s mental health);

Not subject to disclosure: grand jury transcripts, work product; continuing duties to disclose:
If you find something out late in the matter, you must disclose
Failure to disclose – your evidence may be not allowed; you may be prevented from presenting your evidence.

Information or Grand Jury Indictment:

Information: a formal charge made by the prosecutor, stating that the named person is charged with committing a specified
crime.
Indictment: prepared by the prosecutor.
Grand Jury: functions as a check on prosecutorial abuse by screening cases for probable cause. If probable cause is prese
the Grand Jury will issue a true bill. If not, they will issue a no true bill. Although the Grand Jury is usually presented with probable c
issues by the prosecutor, the Grand Jury can initiate an investigation on its own. If they find that crimes are being committed, they c
issue a presentment. A presentment is a formal allegation that a named person or business has committed a crime.
Information: true bill by prosecutor without affirmation by grand jury; signed by prosecutor.
Indictment: true bill by grand jury on probable cause determination brought before them by prosecutor. Signed by prosecu
and grand jury foreperson. An indictment must charge a person with a crime. It can name John Doe but must have a description th
would allow a reasonable person to know who is being charged. The indictment doesn’t have to allege a specific time (on or about
__ day of ___)
Presentment: true bill initiated by grand jury without the prosecutor.

The grand jury also functions to investigate possible violations of the criminal law (presentments) and to oversee some public facilit
activities.

The grand jury foreperson has a term of 2 years from the date of appointment. He administers the oaths to witnesses and must sign
indictments and presentments.

Duties of D.A.:
(1) the D.A. attends the grand jury proceedings for the purpose of giving legal advice when required by the grand jury
(2) the D.A. prepared the indictments
Although the grand jury proceedings are secret, grand jury testimony may be disclosed as required by the court to ascertain whethe
testimony is consistent with that given in court or disclose the testimony given before them by any witness charged with perjury.
Both grand juries can use subpoenas to require witnesses to testify or produce physical evidence and both can grant immunity to a
witness forcing the witness to disclose what would otherwise be withheld as incriminating evidence.

Subject: a person whose conduct is within the scope of the grand jury’s investigation

Target: a person as to whom the prosecutor or the grand jury has substantial evidence linking him to the commission of a crime, an
who, in the judgment of the prosecutor, is a putative defendant.

Tenn. R. Crim. P., Rule 6

The State grand jury consists of 12 jurors and a grand jury foreperson. The grand jury has the duty to :
(1) inquire into, consider, and act upon all criminal cases submitted to it by the D.A. 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 conditions and management of prisons and other county buildings and institutions, 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.

STATE GRAND JURY FEDERAL GRAND JURY

12 jurors + jury foreperson (13)
jury instructed by judge
required to return reports
Not usually recorded
No one allowed in during deliberations
No definite term
Foreman is appointed by the judge and serves a
term of two years but can be almost permanent
12 votes required for true bill.
All must sign a presentment
Foreman can sign presentment w/o prosecutor
Must include statement that the offense was
“in violation of T.C.A.§_______ and
against the peace and dignity of the State of
Tennessee.
No extraterritorial authority
Normally no stenographer
Normally no lawyer present
23 jurors (including foreperson)
jury instructed by judge
cannot return reports
always recorded except during deliberations
No one allowed in during deliberations
18 month term
foreman picked from among jury pool
16 votes required for true bill
unlimited jurisdiction
stenographer always present
government lawyer always present
prosecutor must sign indictment

Arraignment: (defendant enters a plea) brief hearing before the judge and with counsel present. The defendant is informed of the
charges and be given a chance to plead. If the defendant pleads guilty, he may be sentenced at that time. If he pleads not guilty, a
will be set for trial. The defendant can also “stand mute.” The judge will take this as a not guilty plea and set the matter for trial.

Pretrial conference: Conference to clarify the issues and resolve procedural matters. The defendant doesn’t have to be present but
must be represented by counsel.

Trial:
Motions
Discovery
Voire Dire
Jury Selection
Objections to jurors for cause have to have factual and legal grounds for the challenge. To preserve the record, yo
have to use all of your peremptory challenges ( 3 in misdemeanors, 8 for felonies, 15 for federal)
Babson Challenge- removing an African American from the jury.

Swearing in of the Jury (this is when double jeopardy attaches),

Initial Jury Instruction
Opening Statement: There is no argument yet. The opening statement is used to share your theory of the lawsuit w
the jury. The State opens because it has the burden of proof.
Body of the Trial
Direct Examination- Prosecution’s Case (prosecution goes first because they have the burden of proof) Questions
non leading.
 Defenses Motion to Dismiss
Cross Examination -Defense’s Case
Other proof -- rebuttal and surrebuttal
Rule 29 motion for Acquittal
Closing Arguments: the State can rebut the defense’s closing arguments.
Jury Instructions or Charge to Jury: the judge explains the law to the jury.
You can request that specific instructions be given to the jury. You can also object to the standard jury instructions.

Jury Deliberations
Jury Verdict
If guilty, sentencing date set and sentencing report made.
Sentencing Hearing
Direct Appeal: there is an automatic right of appeal. On appeal, you can only argue questions of law. If you lose the appeal
can appeal to the next level but they can grant or deny.
Collateral Attack, Post Conviction Relief: (allege violation of a constitutional right, writ of habeas corpus)
Executive Clemency: an order by the jurisdiction’s highest executive officer that removes a conviction completely (pardon)
reduces the sentence (commutation).

Time Limitations

Crime; Pre charge delay; 5th amendment right to due process

• Statute of limitations
1st degree murder – SOL – life of the defendant
Class A felony - 15 years
Aggravated arson, aggravated rape; 2nd degree murder
Class B felony – 8 years
Class C or D felony – 4 years
Class E – 2 years
Misdemeanor – 12 months
Exceptions: hid the fact there was a crime – this time is not included in the SOL; time period
begins once it is discovered that a crime occurred
• Assert that the due process of the 5th amendment and under
Article1 Section 8 of Tenn was violated
Delay
Delay has to intentional by government; bad faith;
Actual prejudice

Arrested or Indicted; 6th amendment to a speedy and public trial starts when you are arrested or indicted:
• arrest warrant does not count unless it is served on defendant;
• indictment does count (even if you do not know you have been indicted)

Dismissal of charges is the only remedy to a violation of 5th amendment (due process) or 6th violation (speedy trial);
dismissed – gone forever

Court adopts a 4-pronged balancing test to determine if a defendant was deprived of his rights to a speedy trial.
1) length of delay (MOST IMPORTANT)
2) reason for the delay
a. negligence on part of government
b. government delays to obtain more evidence
c. valid reason; government is missing an important witness
3) defendant’s assertion of his right
a. if defendant does not assert his right, it weighs against him but failure to assert the right does not waive
the issue
4) prejudice to the defendant (SECOND MOST IMPORTANT)
a. witnesses die; memories fade; physical evidence is ruined, lost, etc.
b. defendant might be sitting in jail; stress; anxiety; lost of concurrent sentences;

Barker v Wingo
Defendant spent 10 months of this 5 year delay in jail; did not assert his right until like the 12th continuance. In this case,
the prejudice to the defendant was minimal and the defendant did not assert his right until it was to his advantage, so
despite the long delay (5 years) without much reason, the Supreme court held that Barker’s 6th Amendment rights were
not denied and the lower court ruling was affirmed.

Doggett v US
Doggett did not know about the indictment; took the state 8 ½ years to find him. The Court found that the 8 ½ year lag
between the indictment and arrest clearly suffices to trigger the speedy trial inquiry. For 6 years, the government’s
investigators made no serious effort to test their assumption that Doggett was living abroad, and if they had done so, they
could have found him quickly. This was findable negligence.
The Court states that consideration of prejudice is not limited to the specifically demonstrable and affirmative proof of particularized
prejudice is not essential to every speedy trial claim. Excessive delay presumptively compromises the reliability of a trial in ways that
neither party can prove or identify. The portion of the delay attributable to the government’s negligence far exceeds the threshold
needed to state a speedy trial claim. Holding based strictly on the lengthy delay; Defendant is entitled to relief.

Federal Speedy Trial Act of 19_4 (only applies on federal prosecutions); sets limits on long from indictment to trial; 70
days absent an agreement by defendant that it be extended;

Extensions of the 70 days:

Mental evaluations
Pre-trial diversion
Complex trial – not feasible to try in 70 days

Not valid: court docket is full;

When inmate is in another jail; once inmate is removed to jurisdiction that wants to try him; 180 days absent agreement
for extension

Cannot try faster than 30 days from arraignment

Tennessee does not have a speedy trial act.

Smith v Hooey
Defendant was in a federal prison; indicted in a Texas court on another charge; requested speedy trial; Texas court
ignored him for like 6 years; Constitutional guarantee of right to a speedy trial is an important safeguard to prevent undue
and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusations and to limit
possibilities that long delay will impair ability of an accused to defend himself. State of Texas had obligation to make a
diligent, good-faith effort to bring Smith to Texas for trial. Texas argued re cost of transportation etc; NO price tag on
constitutional rights.

US v Lovasco
Defendant arrested 18 months after indictment; lost 2 key witnesses in delay;

TN constitution provides greater protection for individuals than does the US constitution; include both when drafting a motion because
you could lose on the US const ground and win on the TN constitution grounds.

Right to a public trial; right of the accused

When is it appropriate to close a trial room:

1. protect safety of someone involved
2. protection of undercover officer who is testifying as a witness
3. protect defendant (hostile, divorce proceedings)
4. victims age, psychological maturity, nature of crime,

Public’s right to attend – 1st amendment; freedom of speech, freedom of press

Cameras allowed in TN courtrooms.

Right to an impartial judge – due process right of US 5th amendment; applicable to the state in the TN 14th amendment.

Can disqualify a judge – file an affidavit;

Parties do not have an absolute right to disqualify a judge; Cannot under the state rules.
Voir dire; process by which you pick a jury.

Right to confront witnesses against them; extends to all phases of trial and pre-trial hearings. Not an absolute right; can waive it.
Waiver must be knowing, and voluntarily and intelligent.

Rule 43 – defendant shall be present at arraignment and every stage of the trial unless the defendant moves to be excused and the
motion is granted.

1. If defendant shows up for the start of the trial and then voluntarily absents himself for the remainder of the trial. – clear
waiver of his right to be present.; trial goes on without you. If you don’t show up – there will not be a trial.
2. If you act up during a trial – you will be removed. The defendant must be represented by competent counsel, given a
reasonable opportunity to consult with counsel and offered to be returned if he promises to behave.

Prosecution has burden of proof; beyond a reasonable doubt; must prove all elements.

Affirmative defense of insanity; burden shifts to the defendant – by a preponderance of the evidence that the affirmative defense
exists. If defendant can prove it – the burden shifts back to the state to disprove it.

Claim of right defense:

1. Defendant acted under an honest belief that he had a claim of right to the property;
2. Defendant acted under the honest belief that he a claim to exercise control over the property;
3. Defendant honestly believed that the owner, if present, had consented.

Must give notice to government if you are planning an affirmative defense.

Defendants right to testify; no specific right; it is implicit in the 5th amendment due process, 6th amendment compulsory process – to
force witnesses to come to court on your behalf; 6th amendment right to self-representation;

5th amendment forbids comments by prosecution re inference on the defendant’s guilt or innocence if he does not testify.

If defendant chooses not to testify, he has to sign a waiver acknowledging that he knows he has the right to testify and after consulting
with counsel, chooses not to. It is defendant’s decision NOT THE LAWYER.

If defense asks for instruction – the judge must instruct the jury that they may not consider the defendant’s silence.

Defendant’s right to compulsory process - Rule 17 of criminal procedure (fundamental to having a fair trial) and access to evidence.

Defendant’s right to confront and cross-examine witnesses – 6th Amendment. Cross-examination is the single most valuable tool for
finding the truth.

Cross-examination in federal court is limited; not limited in state court.

Rule 611 of TN Rules of Evidence; cross-examination is relevant to any issue in the case including the witness’ credibility.

What is meant by confrontation? Physical presence of adverse witnesses; some testimony may be allowed from a person who is not
on the witness stand; i.e., dying declaration (witness is no longer available).

Crawford v Washington; right to confront witnesses against you; removed the excited utterance rule (Testimony in a startling event –
admissible evidence; makes a spontaneous declaration – excited utterance rule).

Rule 18: unless a statute or other rule applies, offenses prosecuted in county where committed. If more than one, then either. D and
court can change venues. Can file motion for change of venue and must have affidavit attached. P gets to decide venue first off,
anyway. As soon as reason is known, then make motion for change of venue (can be after jury selection started). :

Contemporaneous objection - Rule 51 of Tenn. R. Crim. P.- if you can’t specify the ground for the objection, it works as a waiver of
the objection.

Offer of Proof: Rule 103 (b) Tenn. R. Evid.- When you have evidence you want presented but the court says that it can’t be put on,
you make a Rule 103(b) offer of proof. This is proof on the record but out of the presence of the jury. The judge has to let you make
an offer of proof.
Pretrial Diversion: Diverts the defendant out of the criminal justice system rather than going to trial. Can be appealed to the Circuit
Court from the General Sessions Court.

Appeal Bonds: T.C.A. 40-26-102 et seq. and Rule 32(d) of Tenn. R. App. P.

Trial transcript: (attorney’s responsibility)- this has to be certified by the court reporter and approved by the judge.
Exhibits:
To be considered on appeal, exhibits must be received into evidence, marked and included in the record sent to the court of appeals.
Omnibus Hearing: hearing automatically scheduled a number of days before each criminal trial. The omnibus hearing tries to resolve
all outstanding motions and to deal with administrative matters that will speed up the criminal process.

There are three probable cause hearings:

1) before a magistrate or clerk
2) at the preliminary hearing
3) before the grand jury

Rule 37 & 38 of Tenn. R. Crim. P. deals with harmless error. You have to show that the error affected the outcome of the trial.

Preserving evidence to prosecute case. Witness gets on stand and takes oath to tell truth – that is evidence.

Jury Trial
1. Overview
2. Issues Tried by Jury
3. Right to a Jury Trial
Two possible sources: 6th amendment and statutes
a. Sixth Amendment
i. Petty Offenses
(a) Incarceration
--6 mo. jail sentence is short enough to be petty (Duncan v. Taylor)
--No offense is petty where imprisonment for more than 6 mos. is authorized…
-- some state constitutions extend the right to a jury trial explicitly to misdemeanors
(b) Other Sanctions
-- Blanton – “petty” determined by looking at how serious society regarded the offense –
leaves open the question of what amount of a fine is entitled to jury trial (though not
allowed at $1K in this case)

ii. Juvenile Cases

-- 6th amendment right to jury trial doesn’t apply to juveniles convicted in juvenile court

iii. De Novo Cases

-- 2-tiered system – person charged w/misdemeanor or certain felonies has option of first being
tried at a bench trial. If convicted, may appeal to higher court and has right to receive a jury trial
de novo. (US Sup. Ct. ruled this doesn’t violate 6th amendment)
b. Court Rules

4. Waiver of Jury Trial

- Jury trial actually occurs in surprisingly few cases (of 9% who actually went to trial, more than half opted for
bench trial)
- Approx. half of states allow prosecutors to either directly request jury trials or to override D’s waiver (Singer)
-- Rule 23 requires waiver to be in writing – must be “knowing, intelligent, and voluntary” (ABA recommends
getting waiver statement in open court)

5. Jury Size
a. Waiver of Full Jury
-- accused can waive right to full jury and submit for a smaller jury, but he’s not entitled to know the identity of
sitting jurors who leave (US v. Yonnn)
**although jury of <5 would violate Ballew, if D waives 6, and one leaves

b. Alternate Jurors
- Every jurisdiction has mechanism for selecting jurors
- alternates hear everything jury hears, dismissed when trial jury retires to enter verdict
 FEDERAL RULES OF CRIMINAL PROCEDURE Rule 24. Trial Jurors (c)

6. Selection of Jurors
Jury pool – produce petit jury (6-12 ppl) – Voir Dire
a. Eligibility for Jury Services
- Must be 18 yrs old, resident for at least 1 yr, can’t be related to parties (in most jurisdictions)
- right to be tried by a jury from the district or county where crime was committed – geographical area from
which jurors are selected
- according to fed. law, can’t exclude from jury service b/c of race, color, religion, sex, nat’l origin, or economic
status.

b. Selecting the Panel

- Trial judge’s responsibility to remove prospective jurors who will not be able to impartially follow court’s
instructions…
- Lack of adequate Voir Dire impairs the D’s right to exercise peremptory challenges
i. Voir Dire Procedures
(a) Names and Addresses of Potential Jurors
- Atty’s are given so they can prepare questions for indiv. jurors
- no later than 3 days before trial
(b) Juror Questionnaire
- Some courts use – include demographic area, exposure to info about crime, attitudes
about events or people
(c) Expert Consultation
- since 1970s, jury selection experts or “trial consultants” have benen used to assist in
jury selection (see the movie “Runaway Jury”!!!!)
- They may be present at voir dire & offer assistance to counsel about who to keep or not
(d) Interrogation of Potential Jurors: The Voir Dire Process
FEDERAL RULES OF CRIMINAL PROCEDURE Rule 24. Trial Jurors (a)
Examination

ii. Challenges for Cause

Challenge for Cause – claim that potential juror is disqualified from service b/c of an inability to
serve or a bias that would prevent fairness
Peremptory challenge – decision by atty that particular juror shouldn’t serve on jury (limited in
number you can use) – few limits on this dismissal
(a) Inability to Serve (physical, mental capacity, understanding of law)
(b) Possible Bias
(c) Death Penalty Cases
iii. Peremptory Challenges
(a) Number of Peremptory Challenges
10 in capital cases, 6 in cases in Superior Court, 2 in non-record courts, 10 in other cases
where imprisonment in penitentiary is possible
FEDERAL RULES OF CRIMINAL PROCEDURE Rule 24. Trial Jurors (b) Peremptory
Challenges

(b) Procedures for Peremptory Challenges

(c) Grounds for Peremptory Challenges
- Attys often use hunches based on experience to decide whether to accept or exclude a
particular juror
c. Ethical Issues
7. Juror’s Oath

IMPORTANT PROCEDURAL RULES

RULE 1. SCOPE
These rules govern the procedure in all criminal proceedings conducted in all courts of record in Tennessee. Additionally they gove
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.

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 simp
in procedure, fairness in administration, and the elimination of unjustifiable expense and delay and of unnecessary claims on the tim
jurors
Rule 3--Affidavit of Complaint--written statement to neutral magistrate--alleges probable cause
Rule 3.5--Criminal Citations
Rule 4--Arrest Warrant or Summons--based on affidavits, magistrate must find probable cause; must specify suspect with "reasona
certainty"; must be shown to arrested suspect as soon as possible.
Rule 5 --Initial Appearance before Magistrate--persons arrested on warrants must be taken to magistrate "without unnecessary dela
Magistrate may try small offenses; magistrate may bind over to grand jury or try (on waiver) misdemeanors; felony cases require ad
of charge and rights and bind over to grand jury. In probable cause determinations, no hearsay admissible.
Rule 6--Grand Jury
Rule 7--Indictments, Presentments, & Informations--May be amended with consent of defendant. May be amended without consen
before jeopardy attaches if no different offense is charged and no rights prejudiced.
Rule 10--Arraignment--reading of indictment and entering of plea
Rule 11--Pleas--Not guilty, guilty, or nolo contendere (with consent of court). Judge must engage in colloquy with defendant if he in
to plead guilty or nolo contendere, advising him of his rights. Judge is not bound to accept plea agreement.
Rule 12--Pleadings and motions before Trial--Must be raised before trial (1) defects in institution of prosecution; (2) defects in
indictment; (3) motions to suppress evidence; (4) requests for rule 16 discovery; (5) requests for severance or consolidation of char
Failure to raise objections constitutes waiver.
Rule 12.1--Notice of Alibi--ten days after request from D.A. with names and addresses.
Rule 12.2--Notice of Insanity Defense--must notify D.A. in writing
Rule 12.3--Notice of Intent to Seek Increase Sentence--D.A. must notify not less than 10 days (in non-capital cases) or 30 days (in
capital cases) before trial
Rule 14--Severance of Offenses and Defendants--Must normally be made before trial. Defendant has right to severance unless
offenses are part of common scheme; court will sever if situation is deemed unfair or too complex for trier of fact; If co-defendant h
pleaded guilty and informed against defendant, D.A. must (1)agree to joint trial without statement; (2) agree to joint trial where state
has all references to defendant deleted; or (3) agree to sever the trials.
Rule 15--Depositions--Testimony can be taken before trial "due to exceptional circumstances of the case...in the interests of justice
Defendant has right to be present during deposition unless he waives. Reasons to depose: death, illness, absence from hearing,
exempted by court for privilege.
Rule 16--Discovery and Inspection--Defendant is entitled to copies of own statements, oral statements to police, and testimony to g
jury; prior record; documents and tangible objects material to defendant's case which state intends to use in case in chief; reports o
examinations and tests material to the defense or intended for state's case in chief. Defense NOT entitled to reports, memos, or in
documents by d.a.g. or cops in connection with investigation, or to statements by state witnesses. Reciprocal rules apply when def
makes such a request. Failure to call listed witnesses cannot be commented on. Failure to comply with discovery can result in cou
ordering discovery, prohibiting introduction of evidence OR SUCH OTHER ORDER AS COURT DEEMS NECESSARY.
Rule 17--Subpoena--Both parties may have court issue subpoenas (at state expense if defendant is indigent) for witnesses or
documents for trial or for deposition, and court may use contempt powers to enforce subpoenas.
Rule 17.1--Pre Trial Conference--Court may order one or more at its convenience before trial.
Rule 26.2--Production of Statements of Witnesses--After any witness except defendant testifies, opposing party may move to order
opposing side to turn over prior statements. Court may order recess for examination and preparation of cross-examination. If defe
declines to cooperate, testimony of witness will be stricken. If prosecution declines, it's a mistrial.
Rule 29--Motion for Judgment of Acquittal--Can come from defendant's motion, or court may act on its own motion. If at close of
evidence, judge may reserve decision until jury returns. If after jury returns, can be made within 30 days. If motion granted, state h
right of appeal.
Rule 30.1--Taking of Exhibits to Jury Room--All exhibits can go to jury room unless court for good cause, excludes one or more.
Rule 33--New Trial--Court may grant on own motion or defendant's motion. Must be in writing within 30 days of date of order of
sentence. May be amended until date of hearing. Affidavits in support are to be considered as evidence. If new trial ordered, either
can request a new judge.
Rule 35--Correction or Reduction of Sentence--must be made within 120 days. State may appeal a reduction.
Rule 37--Appeal--Defendant may appeal any order or judgment in criminal proceeding and from any judgment of conviction (if plea
guilty must have reserved right); before any judgment is final defendant must file notice of appeal or notice of waiver of appeal.
Rule 38--Appeal of Denial of Pre-Trial Diversion--Defendant can appeal for an abuse of prosecutorial discretion.
Rule 41--Search and Seizure--Warrants to be issued by magistrate; seized property can include evidence, contraband, fruits of crim
property intended for use in committing a crime, persons for whose arrest there is probable cause. Finding of probable cause by
magistrate may be upon hearsay evidence. Warrant must be sufficiently specific as to property, person, and place to be searched
Officer to whom warrant is directed must be present at search. Written inventory of property taken must be made. Officer with war
may break in to extent reasonably necessary to execute warrant. If fruits of illegal search are improperly admitted and defendant la
testifies about property, such will not be a waiver of right to object to admissibility.
Rule 48--Dismissal--State may be allowed to file dismissal of indictment, etc, and prosecution will terminate. May not happen durin
without permission of defendant. If there has been unnecessary delay, court may dismiss.
Rule 51--Exceptions Unnecessary--it is not necessary to except to the court's ruling on objections.
Rule 52--Harmless Error and Plain Error--Harmless Error-No judgment will be reversed except for errors which affected the result o
trial. Plain Error-An error which affected the substantial rights of an accused may be notices at any time even though not raised in
motion for new trial or cited as error.

First adversarial hearing within 10 days

How a case gets to criminal court
Gen sessions verdict is appealed, case goes to criminal court.
Grand jury indictment.
Gen sessions case is bound over for grand jury (summons, citations)

Charging docs-citation, summons, true bill, criminal information

Grand jury returns indictment
Direct presentment-did not have a gen sessions doc that went with it. It is the first time the charges
are being heard. Same as an indictment, but has only been in a GJ. Used by DA when secret
investigations (drug dealers, politicians)
12 people on a grand jury PLUS foreman. TO return a true bill there must be 12 affirmative votes.
Grand juries also have power to bring up any known crimes, inspections of public buildings,
municipalities treasury,
-Criminal Information. GJ do not hear or return criminal information. The GJ has no involvement. The
def waives 5th amendment right to be charged only with GJ review. With Crim Info, counsels agree
on crime charged.

To save time, the def may agree to a criminal info. The def would want to save time if already in jail.

When the grand jury has indicted or a CI is passed, the arraignment happens. Arraignment- judge
finds if def has counsel (indigence based on Fed poverty guidelines-less than $220/week
Counsel will get a copy of charging document, has right to have it read but usually won't.

Def would waive reading of indictment and trial if there is already a deal worked out, or if evidence
that came out in trial would exonerate them

Rule 12
When you are the trial after the arraignment the parties will get another court date. By that date,
discovery will have been done by the parties. And the parties will be required to file any pretrial
motions. Pretrial motions may included, that charging doc is defective, motion to suppress evidence,
or confessions, motion that rule 16 wasn't complied with and to compel discovery, motions for
mental eval, motions for joinder or severance of defs, if these motions are not filed then the issue is
deemed to be waived.
If def att believes art 1 sec 7 in seizure of evidence, and the def doesn't file a motion to suppress
then the evidence will be admitted and can never be suppressed again even on appeal.
Motions that require witnesses (motions that require evidentiary hearing) those have to be filed in a
timely manner and failure to do so will cause the issue to be waived.

Under rule 12.1-Alibi rule

If the DA files a written notice asking def for notice of alibi then the def must give DA the information
or most likely they will not be allowed to use the alibi in the case.
12.2 The attempt to use the affirmative def of insanity must give pretrial notice and the docs written
report and the DA may seek their own analysis.

12.3 DA notice of intent to seek punishment (extreme, or higher than as charged by). The def faces
range of sentencing by the level of felony and the def record. If the DA wants to get higher than the
level of crime by using def record, they must provide NOTICE OF INTENT TO SEEK ENHANCED
PUNISHMENT within ten days. If it is a death penalty, there must be thirty days notice. If the DA
waits and gives notice too late, the remedy is a continuance to allow def to check out reference DA is
citing.
 1. Venue--venue is in constitution, jurisdiction is not.

21-change of venue-small town (high publicity cases) Only def can ask for a change of venue

Pick jurors---in a normal felony (not death penalty) the state has 8 preemptory challenges, and each
def has 8. For preemptory there doesn't have to be a specific reason. In a death penalty, the state
and each def have 15 challenges each. (Petit Jury)
"Voir Dire" Jury selection

For a normal felony, the judge will bring in about 35 ppl then begin asking them if they can be a
juror.

CH 5
Gideon v. Wainwright
(Gideon's Trumpet book)
Was indigent, asked for atty but didn't get one since they were only appointed for capital crime. Supreme
Court ruled that the 6th amend applies to the states through the 14th amend and he ad right to counsel.
Held that right to counsel was fundamental to a fair trial and that it is the interest of the accused and
society.
Per Se (across the board in every circumstance) was applied to all people charged in felonies in all states.

Alabama v. Shelton
There is a right to counsel to petty offenses that result in prison
30 day suspended sentence and 2 yrs unsup probation

Rockgerry v. gillespie county

Civil rights to probable cause applies to initial appearance at bond hearing

Griffin v. Illinois
Indigent def are entitled to a free transcript to their trial for their first tier appellate review
Circuit/criminal--Court of Criminal Appeals (applicable for free transcript)--TN SCt

Douglas v. California
Says there is no free transcript in the secondary appeals to higher court

Custody and release pending trial

8th amendment for bond (TN Art 1 Sec 16, 15)--when writing motions the law goes in the beginning
starting with the biggest law down (Con, stat, rules)
Art 1 sec 16 is exact as 8th amendment

Bail-#1 valid reason for bail is so the def will show for trial.
In the fed system bail setting IS adversarial, in state it is not
-----------Fed is controlled by bail reform act of 1984---------
Someone may be given a no bond if no bond factors can be imposed to ensure def will show or if too
dangerous to the community-a regulation and not a punishment
Also a 70 day speedy trial right in fed court
In TN this can't be asserted until a 9 month delay
Only 1st degree def where a death penalty notice has been filed can be held without bond

TN bail bond statue

40-11-101 et sec

40-11-118(bail bond factors)

One is a likelihood of conviction

ASSIGNMENT--"MOTION TO REDUCE BOND"

Ask to reduce by citing law and using our real life factors
Will not sign name use student number

Kinds of bonds allowed--

Cash bond-def pays entire amt to clerk and receives a full refund upon case completion and can use credit
card.
Property bond--if a person has equity in real property that is valued at 1 1/2 times the amt of bond they
may give a deed of trust to the clerk. At the end of the case it is conveyed back.
Most popular is the surety bond---Bonding company acts as surety holder by paying them 10% and admin
fees and get two cosigners.
ROR-Release on own recognizance--released on def promise to show for court.
Pre trial release--for certain types of crimes (non violent, low level)-with proper contacts in community you
are released without bon and are monitored by Sheriff's Dept

There are some crimes where you have a writing period before you may get bond--domestic violence DUI,
PI
If bond is greater than 75k, you can't make it until you have a source hearing (Davidson County)

40-11-118 factors of bond or changing bond amt (pg 20 in crim handbook)

If the clerk sets the bond, there is a statue that list amt that can be set. Mis 1k, prop, 2k fel person etc
(40-11-105)
Person's length of residence in community, a person's employment-history of and status, family ties and
relationships, character and mental condition, prior criminal record and court proceedings, previous flights
from justice, nature of offense and apparent probable of conviction and length of sentences, prior record a
danger to community, identity of members of the community that will vouch for them, any other factor
that bears on def ties to community or willful risk to not appear

5th amendment part of due process--"nor be deprived of life, liberty or pursuit.without due process of
law"
TN Art 1 sec 8, and --it is broader than the fed 5th amend due process clause giving greater protection
It is for fairness in the process and in the outcomes.
This is where there is a duty to disclose. There is rule 16 of the TN rules of crim pro that is "discovery
and inspection" it is more specific than the due process clause

Rule 16
Does not apply in Gen Sessions since it is not a court of record. It applies in circuit/superior court.
Then the def may file a request for discovery. It is a strategy to force the reciprocal duty of discovery.
If there is evidence the def would like to blindside the DA with at trial, they won't file for discovery.
Usually the discovery motion is too important to not file.

Govt MUST give list of case in chief witnesses, but defense has to give none except alibi witnesses.

If govt doesn't give all, a motion to compel may be filled. Or to suppress related items.

Rule 26.2-"jencks rule"-requires either side to give after a witness' testimony and before cross
examination.must give any recorded or written statement from the witness-only before cross not in
discovery
In TN a lawyer can call someone and interview them over the phone and record without telling witness
it is recorded. Only one person in a call needs to be informed of the recording.caller or attorney

Williams v. Florida…criminal procedure and alibi.

Brady v. Maryland…USSCt..exculpatory material "Brady Material" defined exculpatory materials--
whether the failure to turn over statement affected the death penalty.5th amend requires prosecutors
to provide info in favorable of accuse and material to guilt or punishment. Impeachment evidence can
be exculpatory evidence.

PA v. Richie…failure to provide file might have violated 6th amend right to compulsory process. Court
ordered that future issues should be turned over to court to review en camera (in private) and court
decides if there is exculpatory info and if so provide that part to the defense
State v. ferguson--def was slumped over wheel of care, cop smelled alcohol and asked def out of car.
Def failed and was arrested. Def was taped in sobriety test at jail but was taped over. Were his art 1
sec 8 rights infringed when the tape was destroyed.
1. there must be duty to preserve evidence if it is exculpatory,

1. def can't obtain by any other means then there is a duty.

Then it looks at 3 factors if due process violation

1. Free of negligence involvement-if only neg.ok

1. Significance of lost evidence.if not equal to comparable available evidence

1. Sufficiency of other evidence to support conviction

Statute of limitations--amt of time govt has to prosecute the crime.

Felonies-
Class A-15 yrs
Class b-8 yrs
C or D- 4 yrs
E- 2 yrs
Misdemeanor - 12mos

Statute can be tolled:

Embezzlement- time period the crime is concealed does not count in statute
If a threat of violence against a child to cover a crime, the period between the act and the crime being
told doesn't count

See 40-2-104 Commencement of prosecution

Commencement is begun by an indictment, obtaining an arrest warrant

If a person ends up being charged with a lesser crime in court, then the statute of the lesser crime
must be met also (meaning less time for the limitation)
Def would motion to set aside verdict and dismiss due to passing the statute of limitations

Due Process
Amendment 5 sec 10, 14

Direct Presentment---means straight to the grand jury

Motion to dismiss with prejudice--dismissed and can NEVER be brought back

Due Process tests

1. Length of delay

1. Govt caused delay or tactical advantage or to harass def

1. Actual prejudice

Then the speedy trial must be fulfilled. ===HOW LONG IS THE LIMIT

1. Length of delay

1. Reason for delay

1. Assertion of 6th amendment rights

1. Prejudice to defendant

In federal law there is a 70 day threshold, but def always seeks continuance
TN does not have a speedy trial statute.

Prejudice to def--Aggressive pre-trial interrogations, loss of evidence, loss of memory, loss of

possibility of concurrent jail sentences
Reasons for delay--deliberate delay by government, defendant delay, negligent delay (most common,
by the govt), valid delay (mental evals, illness)

Assertion of the 6th amend right--weighs heavily in his favor, failure to do so weighs against him but
does not constitute waiver of the issue.

Duncan v. louisana
A six person jury must be unanimous. Six is the least the SCt approved so the minority isn't ganged up
on

6th amendment confrontation clause:

Right to confront --hearsay was admissible if it was made in a state of passion.

Long sentence accomplishes deterrents by incapacitation of the offender.

General deterrents let people know what the punishment is
40-35-102 incapacitation is in 3b

Ex post facto, principle of legality

All restitution must be actionable without consideration f race, religion or gender---due process clause

40-35-103-guidelins to apply principles

Sentencing should be based on those factors

Tenn Felonies
A-E(a-15-60,
The worst crime in the state is above A, first degree murder. Three poss. punishments: death, life
B felonies: agg robbery, agg kidnapping
C-voluntary manslaughter, agg assault, agg burglary, theft over 60k
D-burg of business, forgery, theft over 1k, reckless hom
E-any forgery up to 1000, neg homicide
Agg burglary crimes do not merge

Juvenile convictions will act as a prior conviction

Plea bargains:
Taken, denied and recommendation by DA

3-35-112 mitigating factors for sentencing

Community corrections-to alleviate overcrowding

40-15-105-pretrial diversion
If no record, your atty should ask DA to screen for diversion that will never be used against him. The
da then decides is diversion is offered. If he is offered a contract is drafted for the terms for mental
health treatment, education, drug treatment etc. The court is then asked to approve it. It can count for
up to two years. If he completes his obligations, the record can be expunged.

40-35-313\
Person enters a guilty plea. With conditions…if completed case will be dismissed. If def doesn't meet
obligations, he has already pleaded guilty and will have a criminal conviction and judge will determine
punishment

Appeals
Tn rule of appellate procedure c
Automatic appeal.
 Def may appeal jury verdict, sentence, court finding of probation violation, DA denial of pretrial
diversion, amt of bond, certified question of law
Rule 9
Interlocutory appeal where court agrees
10 interlocutory where trial court disagrees
11-APPEALING FROM 1ST APPEAL TO SUPREME

Plea bargains and pleas

Most cases are resolved through plea bargaining

Poss. Ways outside of rue 11 a case can be plea bargained

In most counties a retirement is available. It is a legal fiction not in the rule. It means a person is not found
guilty or innocent, but the case isn't going to be prosecuted for a period of time. At the end of that time, if
the def has met the pre agreed conditions, then the case will convert to a recognized dismissal and can be
expunged.

There are three pleas in the rule

Guilty, not guilty and no lo contendre
Before a person can plea nolo, the court must agree. Court enters a guilty verdict.
Also, NC v. Athort?--the "best interest plea" the def says I am pleading guilty not because of the facts but
because it is my best interest.

Before the court ay accept a guilty or nc plea, the curt addresses the def in open court and inform them of
the issues. "Plea Colloquy" the def must understand the nature of the charge, the max penalty and any
mandatory minimum penalty.
The def must be informed of his right to attorney again at a trial, knows he has the right to plead not guilty
and to persist in a previous not guilty plea, to cross examine any witnesses, freedom from compelled self
incrimination. The def is under oath during this talk. The court has to determine that the plea is voluntary
and assure that the plea is not the result of coercion.
The court has to know that there is a factual basis for the plea. After the colloquy, the DA will read a
statement of fact into the record

3 types of plea agreements--

DA can offer a plea where def pleads guilty and in exchange other charges are dismissed. If the court
determines that it is too harsh, the def is informed he can withdraw
-the DA agrees to recommend or not oppose def motion for a particular sentence,
-The DA plea bargains and def accepts a specific sentence.

A guilty plea during a plea bargain can't be used if def withdraws the plea

JOINDER AND Severance

Joinder is the process of joining two or more people or crimes in an indictment
Severance is the process of undoing joinder so that the crimes or people are tried separately

They require a balance.DA are often --judicial effeciency is prime concern

Fairness is the competing interest
Defs usually want severance because if joindered then the jury will believe that if all the charges are there
then they must be guilty of a pattern

5th amend right to due process Art 1 sec 8 of TN cont

These are usually a strategy decision. Either for efficiency or to prejudice jury

Rule8-joinder
8.a. is mandatory joinder rule
8.b. is permissive joinder--can the offenses be put together.
8.c. joinder of defendants--when they can be joined--if each is charged with accountability in each offense,
if each is charged with conspiracy, even if conspiracy isn't charged and all aren't charged in each acct, if
all charges are part of a combined scheme or plan or were so closely connected that it would be difficult to
separate them

Rule 14-severence of defendants and