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Exigent Circumstances Argument Rejected in Blood Draw Case

Exigent circumstances is one of the exceptions to the requirement that a search be authorized by a warrant to be considered reasonable. But exigent circumstances arguments to draw blood without a warrant when a person is suspected of driving under the influence have been often rejected since the U.S. Supreme Court opinion in Missouri v. McNeely in 2013 (determining that the dissipation of alcohol in the blood over time did not create exigent circumstances when it was still reasonable to obtain a warrant). In the recent Tennessee case of State v. Cates, E2014-01322-CCA-R3-CD (Tenn.Crim.App. 9-28-2015), the Court of Criminal Appeals has again reversed a warrantless blood draw.

Child Neglect Conviction Overturnd for Insufficient Evidence

In Tennessee, child neglect is the crime of failing to take proper care of a child for whom the accused had a duty to provide care, when the neglect results in harm to the child. It is distinguished from child abuse in that for the crime of neglect, the accused does not have to have actually inflicted the harm to the child, but does have to have failed to act to prevent the harm when the accused had a legal duty of care. In the recent case of State v. Higgins, M2014-01171-CCA-R3-CD (Tenn.Crim.App. 7-27-2015), the Court of Criminal Appeals reversed a conviction for aggravated child neglect because the State had not proven that the defendant in that case had a legal duty of care to the injured child.

Conviction Affirmed Despite Use of Evidence of Other Crimes

Generally, evidence of other crimes or bad acts is not admissible in a criminal trial in Tennessee when its only purpose would be to prove conforming conduct (under the reasoning that a jury should consider only the offense charged and not other bad things the accused may have done). However, it may admissible if relevant for other reasons ... such as to establish motive, a common scheme or plan, identity, or absence of mistake or accident. Upon request by the objecting party, a trial court should hold a jury out hearing to determine the admissibility of the evidence in question. In the recent case of State v. Grimes, W2014-00786-CCA-R3-CD (Tenn.Crim.App. 6-26-2015), the Tennessee Court of Criminal Appeals, in a split decision, affirmed a conviction for aggravated sexual battery despite the introduction of evidence of other crimes or bad acts not charged in the indictment and which occurred outside the jurisdiction of the trial court.

Expert Testimony Not Admissible to Establish "Heat of Passion"

Expert testimony may be used in criminal trials in Tennessee when it can substantially assist the trier of fact to understand the evidence or to determine a fact at issue. It is not uncommon for there to be evidentiary disputes about whether a particular expert's testimony on a particular subject does that. A trial court judge, guided by legal precedent, must ultimately determine whether particular expert testimony will be admissible. Then the trier of fact (a jury in most criminal trials) must determine how much weight to afford that evidence. In Tennessee criminal trials for first degree premeditated murder, the defense may present expert testimony regarding the defendant's mental state only if the expert testimony can conclude that the defendant 1) suffered from a specific mental disease or defect; and 2) was unable to form premeditation as a result of that mental disease or defect. If the proffered expert(s) on the defendant's mental state does not reach both these conclusions, the testimony will be inadmissible. Additionally, the expert may not testify on the question of whether he or she believes the defendant experienced "sufficient provocation" or acted in the "heat of passion," as those determinations are not scientific or medical conclusions.

Improperly Admitted Prior Consistent Statement Vacates Conviction

A prior consistent statement usually refers to an extrajudicial statement by a witness which is in agreement with something to which that witness has testified in court. Under evidentiary rules in Tennessee courts (the federal court rule on this subject is different), prior consistent statements of witnesses are generally not admissible. The reasoning for this is that finders of fact in judicial proceedings should primarily consider what the witness has said in court rather than considering the contents of out of court statements. But prior consistent statements may be used to bolster credibility if the credibility of the witness' statement is attacked in court. Even in that case, the statement should only be considered for purposes of evaluating the credibility of the in court testimony.

Self Serving Statement Not an Excited Utterance

In Tennessee, an 'excited utterance' is a specific exception to the hearsay rule of evidence. Generally, extrajudicial assertions of fact are considered hearsay cannot be introduced to prove those facts. Some exceptions apply. One of those exceptions in Tennessee is an 'excited utterance,' which is a statement relating to a startling event or condition made while the declarant was under the stress of the event or condition. Courts consider these kinds of hearsay statements sufficiently reliable to at least be heard by a jury (though the jury is certainly free to determine how much weight to afford the statement). In the recent case of State v Wells, W2014-00185-CCA-R3-CD (Tenn.Crim.App. 3-13-2015), the Court of Criminal Appeals rejected the defense argument that the Defendant's assertions of self defense made to an arresting officer met the requirements of this exception.

Self Serving Statement Not an Excited Utterance

In Tennessee, an 'excited utterance' is a specific exception to the hearsay rule of evidence. Generally, extrajudicial assertions of fact are considered hearsay cannot be introduced to prove those facts. Some exceptions apply. One of those exceptions in Tennessee is an 'excited utterance,' which is a statement relating to a startling event or condition made while the declarant was under the stress of the event or condition. Courts consider these kinds of hearsay statements sufficiently reliable to at least be heard by a jury (though the jury is certainly free to determine how much weight to afford the statement). In the recent case of State v Wells, W2014-00185-CCA-R3-CD (Tenn.Crim.App. 3-13-2015), the Court of Criminal Appeals rejected the defense argument that the Defendant's assertions of self defense made to an arresting officer met the requirements of this exception.

Conviction Reversed Due to Witness Sequestration Violation

In a criminal trial, sequestration of witnesses refers to preventing witnesses who may testify in the trial from hearing the testimony offered by other witnesses. The purpose of the rule is to prevent witness testimony from being affected by hearing what an earlier testifying witness has said. Though a prosecutor may sometimes keep an investigator or other party essential to the presentation of the case at the prosecutor's table during trial, that person should generally be called as the first witness in the State's case if that person intends to testify at all. In the recent Tennessee case of State v. Cooper, M2013-01084-CCA-R3-CD (Tenn.Crim.App. 12-17-2014), the Court of Criminal Appeals reversed a conviction due to the State's violation of this principle.

Court Approves Statute Allowing Video Hearsay Statements from Children

Generally, hearsay statements, which are extrajudicial assertions of testimonial facts, are not admissible in criminal trials in Tennessee. However, the Rules of Evidence provide specific exceptions and indicate other exceptions could apply as well. In 2009, the Tennessee Legislature passed a law specifically allowing for the admission into evidence of relevant video hearsay statements of children under the age of thirteen when the statements describe sex abuse and when, in the judgment of the trial court, a list of criteria is met which is designed to ensure the reliability of the statements. In the recent case of State v. McCoy, M2013-00912-SC-R11-CD (Tenn. 12-1-2014), the Tennessee Supreme Court addressed constitutional challenges to this evidentiary statute and approved its constitutionality and application.

Blood Evidence Admissible by Implied Consent

Circumstances under which evidence from a warrantless blood draw of a person suspected of driving under the influence (DUI) have been the subject of much legal argument since the U.S. Supreme Court decision in Missouri v. McNeely (2013), finding that exigent circumstances do not always justify warrantless blood draws in DUIcases. Tennessee law mandates a blood draw under certain circumstances. But, when that blood draw occurs without first obtaining a warrant, it still must occur pursuant to a constitutional exception to the warrant requirement. Tennessee has an implied consent law. Though it appears that implied consent may be withdrawn before a blood draw occurs, the recent Tennessee case of State v. Reynolds, E2013-02309-CCA-R9-CD (Tenn.Crim.App. 11-12-2014) determined that when implied consent is not actively withdrawn and the blood draw not specifically refused, it can occur pursuant to the consent exception to the warrant requirement.

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