Criminal Procedure FINAL

8/8/2019 Criminal Procedure FINAL

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Criminal Procedure FINAL4-5-07: Limitations on Prosecution

TCA 40-2-101 Felonies: (a) A person may be prosecuted, tried and punished for an offense punishable with death or by imprisonment in the penitentiary during life, at any time after the offense is committed. (b) Prosecution for a felonyoffense shall begin within:(1) Fifteen (15) years for a Class A felony;(2) Eight (8) years for a Class B felony;(3) Four (4) years for a Class C or Class D felony; and(4) Two (2) years for a Class E felony.

(c) Notwithstanding subsections (a) and (b), offenses arising under the revenue laws of the state shall be commencedwithin the three (3) years following the commission of the offense, except that the period of limitation of prosecutionshall be six (6) years in the following instances: (1) Offenses involving the defrauding or attempting to defraud thestate of Tennessee or any agency of the state, whether by conspiracy or not, and in any manner; (2) The offense of willfully attempting in any manner to evade or defeat any tax or the payment of a tax; (3) The offense of willfullyaiding or abetting, or procuring, counseling or advising, the preparation or presentation under, or in connection with,any matter arising under the revenue laws of the state, or a false or fraudulent return, affidavit, claim or document,whether or not the falsity or fraud is with the knowledge or consent of the person authorized or required to present thereturn, affidavit, claim or document; and (4) The offense of willfully failing to pay any tax, or make any return at thetime or times required by law or regulation.

(d) Notwithstanding the provisions of subdivision (b)(3) to the contrary, prosecution for the offense of arson as prohibited by 39-14-301 shall commence within eight (8) years from the date the offense occurs.

(e) Prosecutions for any offense committed against a child prior to July 1, 1997, that constitutes a criminal offenseunder the provisions of 39-2- 601 , 39-2-603, 39-2-604, 39-2-606, 39-2-607, 39-2-608, 39-2- 612, 39-4-306, 39-4-307, 39-6-1137, or 39-6-1138, or under the provisions of 39-13-502 --39-13-505 , 39-15-302 or 39-17-902 shall commence no later than the date the child attains the age of majority or within four years next after thecommission of the offense, whichever occurs later; provided, that pursuant to subsection (a), an offense punishable bylife imprisonment may be prosecuted at any time after the offense has been committed.

(f) For offenses committed prior to November 1, 1989, the limitation of prosecution in effect at that time shall govern.

(g) Prosecutions for any offense committed against a child on or after July 1, 1997, that constitutes a criminal offenseunder the provisions of 39-13- 502 --39-13-505 , 39-13-522 , 39-15-302 or 39-17-902 shall commence no later than the date the child reaches twenty-one (21) years of age; provided, that if the provisions of subsection (a) or (b)

provide a longer period of time within which prosecution may be brought than this subsection (g), the applicable provision of subsection (a) or (b) shall prevail.

(h) A person may be prosecuted, tried and punished for any offense committed against a child on or after June 20,2006, that constitutes a criminal offense under the provisions of 39-13-502 --39-13-505 , 39-13-522 , 39-13-527

or 39-15-302 , no later than twenty-five (25) years from the date the child becomes eighteen (18) years of age.TCA 40-2-102 Misdemeanors: (a) Except as provided in 62-18-120(g) and subsection (b) of this section, all

prosecutions for misdemeanors shall be commenced within the twelve (12) months after the offense has beencommitted, except gaming, which shall be commenced within six (6) months.

(b) Prosecutions for criminal impersonation accomplished through the use of a fraudulently obtained driver licenseshall be commenced within one (1) year of the date the driver license expires or within three (3) years of the date thenon-expired driver license was last used to falsely impersonate the person in whose name the driver license was issued,whichever is longer.
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TCA 40-2-103Concealment of crime or absence from state No period during which the party charged conceals the fact of the crime, or during which the party charged was notusually and publicly resident within the state, is included in the period of limitation.

TCA 40-2-104 Prosecution; commencementA prosecution is commenced, within the meaning of this chapter, by finding an indictment or presentment, the issuing

of a warrant, binding over the offender, by the filing of an information as provided for in chapter 3 of this title, or bymaking an appearance in person or through counsel in general sessions or any municipal court for the purpose of continuing the matter or any other appearance in either court for any purpose involving the offense.

TCA 40-2-105 Prosecution; irregularities; suspensionWhen the judgment is arrested, or the indictment or presentment quashed for any defect in the indictment or

presentment, or for the reason that it was not found by a grand jury regularly organized, or because it charged nooffense, or for any other cause, or when the prosecution is dismissed because of a variance between the allegations of the indictment or presentment and the evidence, and a new indictment or presentment is ordered to be preferred, thetime elapsing between the preferring of the first charge, indictment or presentment and the next subsequent term of court must be deducted from the time limited for the prosecution of the offense last charged.

TCA 40-2-106. Reversal; suspensionWhen an indictment or presentment is quashed, or the proceedings on the indictment or presentment are set aside, or reversed on writ of error, the time during the pendency of the indictment or presentment so quashed, set aside or reversed shall not be reckoned within the time limited by this chapter, so as to bar any new indictment or presentmentfor the same offense.

TRCrP 48: DismissalDismissal by the state: with the courts permission, the state may terminate a prosecution by filing a dismissal of anindictment, presentment, information, or complaint. A dismissal may not be filed during the trial without thedefendants concentBy the court for unnecessary delay: the court may dismiss an indictment, presentment, information, or complaint if unnecessary delay occurs in:

1.) Presenting to the GJ a charge against a ^ who has been held to answer to the trial court; or 2.) Bringing a to trial.

Chapter 12 Speedy Trial and Other Speedy Disposition

The 6 th Amendment to the Constitution declares that in all criminal prosecutions the accused shall enjoy the right to a public and speedy trial.

Habeas corpus is a form of collateral attack. An independent proceeding initiated to determine whether a defendant is being unlawfully deprived of his or her liberty.

Speedy Trial is a trial that the prosecution, with reasonable diligence, begins promptly and conducts expeditiously.

In determining if the right to a speedy trial has been deprived the court will usually look at:1.) length of delay2.) reason for the delay3.) the defendants assertion of the right4.) the prejudice suffered

Speedy Trial Act of 1974 - federal law; specific time limits and enumerates what events toll the running of thespecified time.


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Barker v. WingoFACTS: An elderly couple was beaten to death by intruders and Barker was not brought to trial for murder until morethan five years after he was arrested, during which time the prosecution obtained numerous continuances. Heultimately filed a motion to dismiss the indictment asserting that his right to a speedy trial had been violated.

ISSUE: is a defendant deprived of his due process right to a speedy trial if he does not complain about the ensuingdelay and is not prejudiced there by?

HOLDING/REASONING: no, the right to speedy trial is a balancing act between the interest of the defendant andsocietal interest.RULE: When addressing speedy trial claims, courts must apply a balancing test in which the conduct of both the

prosecution and the ^ are weighed, including a consideration of:(a) The length of delay,(b) The reason for delay,(c) The ^s assertion of his right (his responsibility), and(d) Prejudice to the defendant.

Prejudice is the damage or detriment to ones legal rights or claims.

Presumption is a legal inference or assumption that a fact exist, based on the known or proven existence of some other fact or group of facts. A presumption shifts the burden of production or persuasion to the opposing party, who canthen attempt to overcome the presumption.

Statute of Repose is a statute that bars a suit a fixed number of years after the defendant acts in some way, even if this period ends before the P has suffered any injury.

Doggett v. United StatesFACTS: In February 1980, Doggett was indicted for conspiracy to import and distribute cocaine. The Government didnot locate ^ until 1988. Doggett was arrested more than 8 years after an indictment for conspiracy to import cocainewas issued.

ISSUE: when a lengthy delay between indictment and trial is caused by the Governments negligence in locating the ^,is the ^ entitled to dismissal of the indictment?

HOLDING: yes

RULE: Lengthy delays between indictment and trial caused by the Governments negligence violate the 6 th

Amendment right to a speedy trial.

Due Process is the conduct of legal proceedings according to established rules and principles for the protection andenforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to hear the case.

Indictment is the formal written accusation of a crime, made by a GJ (and prosecutor) and presented to the court for prosecution against the accused person.

Whether delay was uncommonly long- double enquiry.1. Accused must allege that the interval between accusation and trial has crossed the threshold dividing

ordinary from "presumptively prejudicial" delay, and2. Court must then consider, among other factors, the extent to which the delay stretches beyond the bare

minimum needed to trigger judicial examination of the claim


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The impairment of one's defense is the most difficult form of speedy trial prejudice to prove because time's erosion of exculpatory evidence and testimony "can rarely be shown."

Negligence in the sense of speedy trial- middle ground between diligence and bad-faith delay

United States v. LovascoFACTS: In March of 1975 was indicted for possession of stolen firearms from the US mail. The offense was

alleged to have occurred in 1973. The district court dismissed an indictment of Lovasco brought an allegedly prejudicial seventeen months after the Government collected the evidence necessary to indict him.

ISSUE: does an unjust pre indictment delay violate the 6 th amendment when the delay prejudices the ^s defense?

HOLDING: noRULE: To prosecute a ^ following investigative delay does not deprive him of due process, even if his defense mighthave been somewhat prejudiced by the lapse of time.

Marion established the proof of prejudice is generally a necessary, but not sufficient element of due process claim, andthat the due process inquire must consider the reasons for the delay as well as the prejudice to the accused.

Investigative delay is wholly separate from delay to gain tactical advantage. The latter is bad-faith. Moreover,investigative delay is rarely one-sided. The Due Process Clause does not require mere speed, but rather diligence andorderly expedition of cases by prosecutors.

State v. UtleySupreme Court of TN 1997FACTS: On June 4, 1987, a criminal arrest warrant for armed robbery was issued for the defendant, DemetriusDewayne Utley, for an alleged offense committed on May 27, 1987, in Davidson County, Tennessee. The defendantwas not served with the warrant until June of 1992, even though he had been in the State's custody for unrelatedconvictions for the majority of the five years. After the return of an indictment in September of 1992, the defendantmoved to dismiss the charge because he had been denied his constitutional right to a speedy trial. The motion was filedin December of 1992 and granted in February of 1993.

Trial court held that the speedy trial right was triggered by the issuance of the arrest warrant in 1987, despite the factthat the defendant was not arrested or indicted until 1992. The court found that the five and one-half year period wasintolerable and egregious, particularly since the defendant had been in the custody of the state. After concluding thatthe defendant had been prejudiced, the trial court dismissed the armed robbery charge.The Court of Criminal Appeals agreed that the issuance of the arrest warrant triggered the right to a speedy trial. Courtof Criminal Appeals concluded that the defendant's right to a speedy trial had been violated.

ISSUE: whether the defendant was denied his right to a speedy trial as required under the Sixth Amendment to theUnited States Constitution and Tennessee Constitution. And, what type of state action which will engage thedefendant's right to a speedy trial.

HOLDING/REASONING: The defendant's right to speedy trial was not triggered when arrest warrant was issued, butinstead was triggered five years later, when defendant was served with arrest warrant and was arrested; The delay of eight months between service of arrest warrant on defendant and argument on motion for speedy trial did not violatedefendant's speedy trial rights; and the remand was necessary to determine whether five-year delay betweencommission of offense and defendant's arrest violated due process issue.

Reversed and remanded to trial court.

Speedy trial- TCA 40-14-101 (1990) In all criminal prosecutions, the accused is entitled to a speedy trial.


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Rule 4 is used in defendant motion. However, "neither Rule 4 nor the advisory comments address the right to a speedytrial." p. 494.

US. v. Marion- prejudice to defendant caused by delay violates right to fair trial

TN. State v. Gray- Application of Marion rule for Pre-arrest Delay: "before an accused is entitled to relief basedupon the delay between the offense and the initiation of adversarial proceedings, the accused must prove that:

(a) There was a delay,(b) The accused sustained actual prejudice as a direct and proximate result of the delay, and(c) The State caused the delay in order to gain tactical advantage over or to harass the accused."

However, for pre-accusatorial delay during which the state was unaware of the commission of the crime, the trial courtmust consider only:

(a) The length of delay,(b) The reason for the delay, and(c) The degree of prejudice to the accused. p. 495.

Case reversed b/c the lower court never gave any due process analysis, in regard to the 5 year delay from thecommission of the offense to the defendant's arrest. If the defendant shows that his right to due process was violated

under Marion , the trial court shall dismiss the charge; otherwise, the trial should proceed.

State v. DykesCourt of Criminal Appeals 1990

FATCS: Bud Dykes, was convicted of selling more than one-half ounce of marijuana by a jury of his peers. The trial judge, finding the appellant to be a Range I standard offender, sentenced the appellant to pay a fine of $5,000 and serveone year and six months in the local jail.

ISSUE: The appellant raises five issues for our review. He contends that the evidence contained in the record isinsufficient to sustain his conviction. He further contends that the trial judge erred in overruling his motion to dismiss,denying his motion for a continuance, refusing to suspend his sentence, and the sentence imposed by the trial judge is

excessive.

HOLDING/REASONING: The evidence was sufficient to support defendant's conviction; the delay of 16 months between time of offense and initiation of adversarial proceedings did not violate defendant's due process rights; thethree months following return of indictment or presentment was insufficient, as matter of law, to trigger speedy trialanalysis; the defendant was not entitled to continuance due to missing defense witness; the since there were noenhancement (and two mitigating) factors present, trial judge should have sentenced defendant to minimum sentencewithin standard offender range for Class E felony; and the trial court properly refused to suspend defendant's sentenceand place him on probation.

Conviction affirmed; remanded for re-sentencing.

"When an accused seeks a continuance on the ground a witness is unavailable, the accused is required to file a writtenmotion which sets forth the grounds with particularity; and the motion must be supported by an affidavit. The affidavitmust allege:

(a) The substance of the facts that the accused expects to prove through the unavailable witness,(b) Sufficient facts to establish the relevance and materiality of the testimony of the unavailable witness,(c) The testimony would be admissible, if the witness was available,(d) The testimony is not merely cumulative to other evidence,(e) The witness will be available at a later date,(f) Diligence was exercised to obtain the presence of the witness.


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The failure to file a proper motion and/or a properly drafted affidavit, standing alone, will justify the denial of themotion without a hearing." p. 256-57.

"Whether a criminal trial should be continued to a later date is matter which addresses itself to the sound discretion of the trial judge." The appellate court won't intervene with the judge's decision unless it appears that "(a) the trial judgehas abused his discretion, and (b) prejudice endured to the accused as a result of the trial judge's ruling." p. 257.

Presumptive sentence - minimum sentence in the range, if not enhancing or mitigating factors

Enhancement factors-above the minimum, but still within range, if no mitigating factors

Both enhancement and mitigating factors- court must start at the min. sentence, enhance within the appropriate range,and then reduce within the range as appropriate

Enhancement- TCA 40-35-114Mitigating- TCA 40-35-113

04-05-07Warrant obtained and not served then the issue is due process and statute of limitations

Time issue after the formal charge and the motion are speedy trial issues

SOL1st degree murder has no statute of limitationsClass A felony-15 yearsClass B-8Class C-4Class E-2Misdemeanor 12months

If the ^ conceals the crime the statute is tolled, this is different from due process

Due Process Test (government knows)1) delay2) actual prejudice3) That the government intentionally caused the delay to gain tactical advantage or harass.

Due Process Test (When the Government did not know the crime occurred)1) delay2) actual prejudice3) reason for the delay

Speedy Trial Test1) length of delay (in TN no set time at least over a year and a half)2) reason for delay

a. good reasonsi. witness missing

ii. still investigating b. bad reasons

i. harassmentii. tactical advantage


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iii. to punish someone by longer pretrial detentioniv. negligence

c. neutral reasonsi. crowded dockets

3) Assertion of rightsa. There is no duty to assert this but it will help in deciding speedy trial

4) Prejudicea. Loss of defense witness

b. Lengthy pretrial detentionc. Anxietyd. Public stigmae. Loss of the possibility of concurrent jail time

Must have Delay before the courts will consider the other factors, after length of delay the most important thing toshow is that there was an actual prejudice

Doggett v. United States***-sometimes the length is just so long that prejudice is assumed.

On a misdemeanor the Capias on a warrant has a 5 year life

Mitigating - TCA 40-35-113 . Include, but not limited to:(1) ^s criminal conduct neither caused nor threatened serious bodily harm;(2) ^ acted under strong provocation;(3) substantial grounds exist tending to excuse or justify ^s criminal conduct, though failing to establish a

defense;(4) ^ played a minor role in the commission of the offense;(5) before detection, ^ compensated or made a good faith attempt to compensate the victim of criminal conduct

for damage or injury the victim sustained.(6) ^, because of youth or old age, lacked substantial judgment in committing the offense;(7) ^ was motivated by desire to provide necessities for the ^s family or the ^s self;

(8) ^ was suffering from a mental or physical condition that significantly reduced the ^s culpability for theoffense; however, the voluntary use of intoxicants does not fall within the purview of this factor;

(9) ^ assisted the authorities in uncovering offenses committed by other persons or in detecting or apprehending other persons who had committed the offenses

(10) ^ assisted the authorities in locating or recovering any property or person involved in the crime;(11) ^, although guilty of the crime, committed the offense under such unusual circumstances that it is unlikely

that a sustained intent to violate the law motivated the criminal conduct;(12) ^ acted under duress or under the domination of another person, even though the duress or the domination

of another person is not sufficient to constitute a defense to the crime; OR (13) any other factor consistent with the purposes of this chapter

.Examples. 1. Neither caused nor threatened harm- Violation of city ordinance. Victimless crimes. Theft (in limited

situations).2. Provocation- Manslaughter.3. Excuse, not a defense. Bar fight that doesnt rise to level of self-defense.4. Minor role. The argument used for look outs in burglary and robbery type cases.5. Good faith effort to make restitution before the court forces him/her to. Any sort of vandalism, or violence

where the person puts the door back on the hinges, or pays his girlfriends hospital bill. (Bleh!)6. Youth or old age caused lack of judgment. Like a minor tried as an adult for a serious violent crime. Or,

remember that guy I told you about- simple domestic assault that caused his wife to die a few weeks later. He pled tothe crime of SDA as charged, in part b/c the hospital failed to do the autopsy and the state didnt want to exhume the

body, but also partly b/c he supposedly had Alzheimers.


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7. Necessity to provide for ones self or family. Okay- so apparently poor have an argument in court for whenthey steal food from Kroger.

8. Mental or physical condition that reduced culpability. Like if the person had a personality disorder thatdidnt rise to the level of insanity (like schizophrenia).

9. Help to convict others. You see this a lot with co-^, where one with the lesser charge might agree to snitchon the others for like a 40-35 or low probationary period (or nolle). Nathaniel Ferris was happy to snitch on PerryMarch. In return, we was given a bond on his multiple Aggravated Robbery charges. Hes just the average criminal,

and wound back up in jail 2 weeks later for Domestic Assault. He eventually got like 8 probation for his guilty plea(which hell eventually serve after he violates some more). CIs are also an example- and it sucks when theyre on

probation cuz they violate 15 times and never get revoked.10. Helping the cops find the person or property in the crime. Remember the Christian burial speech?

Brewer v. Williams11. Unlikely that intent to break the law motivated the crime. Maybe they can use this defense in DUI (but the

state could at least show the mens rea of recklessness).12. Acted under duress or domination, but not rising to the level of a defense. Richardson v. Marsh. She was

still guilty, especially since she held that young woman from letting her and her son leave. However, she could have been honest about being scared of her b/f, classic DV case where she buys into her mans crap so deep that she do didthe wrong thing just to protect herself. Love over conscience.

13. Other factors too.

Enhancement- TCA 40-35-114 . The enhancement factor cant also be one of the elements that was proved in order to meet the states burden as to that charge. The advisory factors in determining whether to enhance a ^s sentence are:

(1) ^ has previous history of criminal convictions or criminal behavior, in addition to those necessary toestablish the appropriate range; [criminal background]

(2) ^ was a leader in the commission of an offense involving two (2) or more criminal actors; [leader of conspiracy]

(3) offense involved more than one (1) victim;(4) victim of the offense was particularly vulnerable because of age or physical or mental disability;

[especially vulnerable young or old victim](5) ^ treated, or allowed a victim to be treated, with exceptional cruelty during the commission of the offense;

(6) personal injuries inflicted upon, or the amount of damage to property sustained by or taken from, the victim

was particularly great; [much injury to victim or damage of his/her property](7) offense involved a victim and was committed to gratify the ^s desire of pleasure or excitement; [sexual or sadistic pleasure]

(8) ^, before trial or sentencing, has failed to comply with the conditions of a sentence involving release intothe community; [previous probation/parol/CC violations]

(9) ^ possessed or employed a firearm, explosive device, or other deadly weapon during the commission of theoffense;

(10) ^ had no hesitation about committing a crime when the risk to human life was high;(11) felony resulted in death or serious bodily injury, or involved the threat of death or serious bodily injury to

another person, and the ^ has previously been convicted of a felony that resulted in death or serious bodily injury;[death or threat of death, when ^ was previously convicted of murder or crime w/ serious bodily injury]

(12) during the commission of the felony, the ^ intentionally inflicted serious bodily injury upon another

person, or the actions of the ^ resulted in the death of or serious bodily injury to, a victim or a person other than theintended victim; [this section sounds like felony murder is itself an enhancement factor](13) at the time the felony was committed, one of the following classifications was applicable to the ^:

(A) released on bail or pretrial release , if ^ is ultimately convicted of such prior misdemeanor or felony; [committing another crime while out on bail or pretrial]

(B) released on parole;(C)) on probation(D) on work release; [ex. Ie. furlough. Darden v. Wainwright](E) on community corrections;(F) on some form of judicially ordered release; [ROR, bond}


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(G) on any other type of release into the community under the direct or indirect supervision of anystate or local governmental authority or private entity contracting with the state or local government;

(H) on escape status; or (I) incarcerated in any penal institution on a misdemeanor or felony charge or a misdemeanor or

felony conviction;(14) ^ abused a position of public or private trust, or used a professional license in a manner that significantly

facilitated the commission or the fulfillment of the offense;

(15) ^ committed the offense on the grounds or facilities of a pre-kindergarten (pre-K) through grade (twelve(12) public or private institution of learning when minors were present; [Drug Free Zone]

(16) ^ was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed by an adult; [juvenile record has a crime that constitutes a felony]

(17) ^ intentionally selected the person (victim) against whom the crime was committed or selected the property that was damaged or otherwise affected by the crime, in whole or in part because of the ^s belief or perception regarding the race, religion, color, disability, sexual orientation, national origin, ancestry, or gender of that person or the owner or occupant of that property; however, this subdivision (17) should not be construed to permit theenhancement of a sexual offense on the basis of gender selection alone; [Title VI- anti discrimination. Civil Rights Actand Americans with Disabilities Act]

(18) offense was an act of terrorism, or was related to an act of terrorism;(19) if ^ is convicted of aggravated assault pursuant to 39-13-102, the victim of the aggravated assault was a

LEO, firefighter, correctional officer, youth services officer, probation and parole officer, a state registered securityofficer/guard, an employee of the TDOC or DCS, an emergency medical or rescue worker, emergency medicaltechnician, or paramedic, whether compensated or acting as a volunteer; provided, that the victim was performing anofficial duty and the ^ knew or should have known that the victim was such an officer or employee; [victim if a govtor medical agent in pursuit of their job of public safety or health care]

(20) if ^ is convicted of the offenses of rape pursuant to 39-13-503, sexual battery pursuant to 39-13-05, or rape of a child pursuant to 39-13-522, the ^ caused the victim to be mentally incapacitated or physically helpless byuse of a controlled substance; [while victim was incapacitated by C/S]

(21) if ^ is convicted of the offenses of aggravated rape pursuant to 39-13-502, rape pursuant to 39-13-503,rape of a child pursuant to 39-13-522, or statutory rape pursuant to 39-13-506, the ^ knew or should have known that,at the time of the offense, such ^ was HIV positive; OR

(22)(A) if ^ is convicted of the offenses of aggravated arson pursuant to 39-14-302, or vandalism pursuant to

39-14-408, the damage or destruction was caused to a structure, whether temporary or permanent in nature, used as a place of worship and the ^ knew or should have known that it was a place of worship.(B) as used in this subdivision (22), place of worship means any structure that is: (i) approved,

or qualified to be approved, by the state board of equalization for property tax exemption pursuant to 67-5-212, basedon ownership and use of the structure by a religious institution; AND

(ii) utilized on a regular basis by such religious institution as the site of congregational service, rites or activities communally undertaken for the purpose of worship.

[Sentencing Reform Act of 2006]

4-12-07. Joinder and SeveranceTRCrP Rule 8. Joinder of Offenses and Defendants.

(a) Mandatory Joinder of Offenses.(1) Criteria for Mandatory Joinder . Two or more offenses shall be joined in the same I/P/I with each offense

stated in a separate count, or the offenses consolidated pursuant to Rule 13, if the offenses are:(A) Based on the same conduct OR arise from the same criminal episode . [Case note: US v. Dixon,State v. Denton](B) Within the jurisdiction of a single court; AND(C) Known to the appropriate prosecuting official at the time of the return of the I(s)/P(s)/I(s).-this is designed to keep the state from holding back charges to try later.

(2) Failure to Join Such Offenses . A defendant shall not be subject to separate trials for multiple offensesfalling within Rule 8(a)(1) unless they are severed pursuant to Rule 14.


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-The defendant has the right to a fair trial-The decision to seek a joinder or severance is mostly strategy

-The state could put more than one crime into one trial to have a higher likelihood of conviction.Advisory Footnote: part (a) for compulsory joinder of offenses against a single defendant. Designed to encouraged asingle trial for multiple offenses arising from same conduct and same criminal episode . To promote efficiency andeconomy. When they give rise to injustice, Rule 14(b)(2) may be used by court to relax this rule. Another purpose- to

prevent DAs from saving back any more charges arising from the same criminal episode. [See Ashe v. Swenson].

Such other charges are barred from future prosecution if known to the appropriate prosecuting official at the time that the other prosecution is commenced, but deliberately not presented to a grand jury .

(b) Permissive Joinder of Offenses . Two or more offenses may be joined in the same I/P/P with each offensestated in a separate count, or consolidated pursuant to Rule 13, if:

(1) The offenses constitute parts of a common scheme or plan ; OR (2) They are of the same or similar character .

Advisory Footnote: Permissive joinder of section (b) allows even unrelated offenses to be joined in the same I/P, whenthey are offenses of the same/similar character. These charged may be severed by the defendant as a matter of right under Rule 14(b), unless part of common scheme or plan , AND the evidence of one would be admissible upon thetrial of the others

.-a ^ has an absolute right to severance, under 8b

(c) Joinder of Defendants. An I/P/I may charge two or more defendants:(1) If each of the defendants is charged with accountability for each offense included;(2) If each of the defendants is charged with conspiracy, and some of the defendants are also chargedwith 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 theseveral offenses charged:(A) Were part of a common scheme or plan ; OR (B) Were so closely connected in time, place, and occasion that it would be difficult to separate

proof of one charge from proof of the others.

Advisory Footnote: Section (c) aims at achieving improved judicial economy and efficiency. Severance of defendantsis addressed in Rule 14(c).

TRCrP Rule 13. Consolidation of Severance.(a) Consolidatioin . The court may order consolidation for trial of two or more I/P/Is if the offenses and alldefendants could have been joined in a single I/P/I pursuant to Rule 8.(b) Severance. The court may order a severance of offenses or defendants before trial if a severance could beobtained on motion of a defendant or of the state pursuant to Rule 14.

Advisory Footnote: Rules 8, 13, and 14 are closely tied together. Rule 13 allows the court to consolidate or sever Os/Ds when the state or defense could have moved to do so. Ie, if a motion would have achieved that purpose, thecourt can do it of its own initiative. When the court orders a consolidation under section (a), the case is then in the

permissive joinder status, and the defendant(s) may exercise options available under Rule 14 to sever. A severanceordered by the court under section (b) is final .

Rule 14. Severance of Offenses and Defendants.(a) Severance Motion .(1) Timing.

(A) By Defendant. A defendants motion for severance of offenses or defendant shall be made beforetrial, except that a motion for severance may be made before or at the close of all evidence if based ona round not previously known. A defendant waives severance if the motion is not timely.


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(B) By State. The states motion for severance of counts or defendants may be granted by the courtonly prior to trial, except with the consent of the defendant.

(2) Double Jeopardy . If during the trial the court grants a motion for severance made by the defendant or withthe defendants consent, the ruling does not bar a subsequent trial of that defendant on the offenses severed.(b) Severance of Offenses.(1) Involving Permission Joinder of Offenses . If two or more offenses are joined or consolidated for trial

pursuant to Rule 8(b), the defendant has the right to severance of the offenses unless the offenses are part of a

common scheme or plan AND the evidence of one would be admissible in the trial of the others.(2) Involving Mandatory Joinder of Offenses . If two or more offenses are joined or consolidated for trial

pursuant to Rule 8(a), the court shall grant a severance of offenses in any of the following situations:(A) Before Trial. Before trial on motion of the state or the defendant when the court finds a severanceappropriate to promote a fair determination of the defendants guilt or innocence of each offense.(B) During Trial. During trial, with consent of the defendant, when the court finds a severancenecessary to achieve a fair determination of the defendants guilt or innocence of each offense. Thecourt shall consider whether-in light of the number of offenses charged and the complexity of theevidence-the trier of fact will be able to distinguish the evidence and apply the law intelligently as toeach offense.(C) Conflicting Positions on Continuance. When the court finds merit in both the district attorneygenerals motion for continuance based on exigent circumstances that temporarily prevent the state

from being ready for trial of the joined prosecution and in the defendants objection to the continuance based on demand for speedy trial. A court granting severance under this subdivision shall also grant acontinuance of the prosecutions in which the exigent circumstances exist.

(c) Severance of Defendants.(1) Because of the Out-of-Court Statement . If a defendant moves for severance because an out-of-courtstatement by a co-^ makes reference to the defendant but is not admissible against the defendant, the courtshall determine whether the state intends to offer the statement in evidence at trial. If so, the court shallrequire the prosecuting attorney to elect one of the following courses:(A) a joint trial at which the statement is not admitted in evidence or at which, if admitted, the statement wouldnot constitute error;(B) a joint trial at which the statement is admitted in evidence only after all references to the moving defendanthave been deleted and if the redacted confession will not prejudice the moving defendant; OR

(C) Severance of the moving defendant.(2) Because of Speedy Trial or Fair Determination Concerns . On motion of the state or the defendant other than under Rule 14(c)(1), the court shall grant a severance of defendants is:

(A) before trial, the court finds a severance necessary to protect a defendants right to speedy trial or appropriate to promote a fair determination of the guilt or innocent of one or more defendants; OR (B) during trial, with consent of the defendants to be severed, the court finds a severance necessary toachieve a fair determination of the guilt or innocent of one or more defendants.

(3) Because of Failure to Prove Grounds for Joinder . The court shall grant a severance of defendants if:(A) a defendant moves for severance at the conclusion of the states case or at the conclusion of all theevidence;(B) there is not sufficient evidence to support the allegation on which the moving defendant was joined for trial with the other defendant or defendants; AND

(C) in view of this lack of evidence, severance is necessary to achieve a fair determination of the movingdefendants guilt or innocence.

Advisory Footnote: Offenses permissively joined by the prosecution (or by the court) may be severed uponmotion by the defendant as a matter of right, with one exception : where the offenses are part of a commonscheme or plan AND the evidence of one would be admissible upon the trial of the others

(b)(2) sets out when and under what circumstances there may be a severance of cases consolidated under thecompulsory joinder rule .

Section (c) deals with US v. Bruton . 391 US 123 (1968). (c)(1) provides that severance is unnecessary whereno Bruton violation, as would be true in cases like Richardson v. Marsh.


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ABA Standards relating to Joinder and Severance.Criminal episode- an occurrence or connected series of occurrences and developments which may be viewed asdistinctive and apart although part of a larger or more comprehensive series.

HOLDING: Trial court was correct in dismissing the case under Rule 8(a), because the second period of time did notterminate the criminal episode, even if separate convictions were possible. 2 nd indictment alleges illegal activitiesthat arose from the same criminal episode as the subject of the 1 st indictment. Thus, the 2 nd indictment violated themandatory joinder rule.

Note: The purpose of Rule 8(a) is to prevent multiple trials on charges arising from the same conduct or same episode.The rule does not necessarily prohibit a subsequent indictment, provided it is consolidated with the prior indictment

before trial or disposition.

RULE: Same conduct or criminal episode consolidation of indictments into one trial

Severence of offenses or defendants

Bruton v. U.S. 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).FACTS: ^ and co-^ tried jointly before a jury, and convicted on federal armed postal robbery charge. A postal

inspector testified that the co-^ admitted to both his and ^'s involvement. Judge instructed the jury that the co-^'sstatements were inadmissible hearsay against ^, and to be disregarded as to his guilt was concerned.

ISSUE: Whether the conviction of a defendant at a joint trial should be set aside although the jury was instructed that acodefendant's confession inculpating the defendant had to be disregarded in determining his guilt or innocence.

RULE(S): Delli Paoli rule, overturned in this case, had previously held that it was reasonably possible for a jury tofollow sufficiently clear instructions to disregard statements of a co-^ that implicate the ^.

This Court states that it may also be a denial of due process to rely on a jury's presumed ability to disregard a co-^'sconfession against another ^, in terms of guilt or innocence. To deprive an accused of the right to cross-examine thewitnesses against him is a denial of the Fourteenth Amendment guarantee of due process of law.

Rule 14 of Federal Rules of Crim. Pro authorizes a severance where it appears that a defendant might be prejudiced by a joint trial. Joinder of defendants is governed by Rules 8(b) and 14 of the F.R.Cr.P. The rules are designed to promote economy and efficiency and avoid a multiplicity of trials, but only where these objectives can be achievedwithout substantial prejudice to the right of defendants to a fair trial .

-Co-^'s statement incriminating ^ may prejudice a defendant.

HOLDING: Because of the substantial risk that the jury, despite instructions to the contrary, looked at theincriminating extrajudicial statements in determining 's guilt, admission of co-^'s confession violated ^'s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment . Prior rule of Delli Paolioverturned. Case reversed. To hold otherwise would be completely contrary to the Rule of evidence, which would

require exclusion of the confession as to Bruton as "inadmissible hearsay". The effect of these jury instructions werethe same as if there had been no instruction at all.

Inadmissible hearsay- a presumptively unreliable out-of-court statement of a nonparty who was not a witness subject tocross-examination.

Dissent- the idea that juries can effectively disregard inadmissible evidence against one co-^.

-Ways to fix admissions of guilt including codefendants name1.) Severance


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2.) Redact the statement3.) Not use the statement

State v. Shirley 6 S.W.3d 243 (Tenn. 1999).FACTS: One indictment- four counts of armed robbery. Appellant moved to sever under Rule 14(b)(1). State arguedthat the offenses were part of a common scheme or plan because of the similarities of the offenses. Trial court deniedappellant's motion. The only characteristics in each robbery that were identical were a black ski mask, gloves, and agun. Clothing items, methods of securing the money from registers, and whether or not the ski mask was removedwere not identical in each case. Jury found defendant guilty of 3 of the 4 counts of armed robbery. Concurrentsentences, 12 years and fines.

ISSUE: What is the proper standard of appellate review of a trial court's denial of a motion to sever offenses under TRCrP 14(b)(1)?

RULE(S): Mandatory Joinder- Consolidation of multiple offenses in a single trial is now mandatory when theoffenses are "based upon the same conduct or arise from the same criminal episode." TRCrP 8(a). Rule 8(b) covers

permissive joinder.

Defendant has an absolute right to a severance of offenses that are of the same or similar character under Rule 14(b)

(1), upon request.

Rules 8(b) and 14(b) allow trial court wide discretion to join offenses for a single trial, when the offenses are part of acommon scheme or plan and when the offense sought to be severed would be admissible as evidence in the trial of theother offenses.

In TN, there are three types of common scheme or plan evidence :(1) offense that reveal a distinctive design or are so similar as to constitute "signature " crimes;(2) offenses that are part of a larger, continuing plan or conspiracy ; AND(3) offense that are all part of the same criminal transaction .

The most common basis for offering evidence of a distinctive design (under part 1) is to establish the identity of a

perpetrator.

Before multiple offenses may be said to evince a distinctive design, the " modus operandi employed must be so uniqueand distinctive as to be like a signature."

Modus operandi - unusual particularities, not likely to be employed by another person, substantially identicaland so unique that it tends to establish identity.

Black's Law definition- modus operandi is a method of operating or doing things. Used by police and criminalinvestigators to describe the particular method of a criminal's activity.

The trial court must look for a distinctive method used to commit the crimes, and not simply for evidence tending toshow that the defendant was the offender.

HOLDING:A denial of a severance will only be reversed for an abuse of discretion . This holding applies to decisions toconsolidate or sever offenses pursuant to Rules 8(b) and 14(b)(1). Trial court in this case abused its discretion indenying a severance because the methods used to commit the offense were not so materially distinct or unique as torise to an inference of identity . Trial court applied an incorrect legal standard in finding that the offenses were parts of a common scheme or plan. The result of not severing the cases invited the jury to infer the appellant's guilt from the

perceived propensity to commit armed robbery, with a result of unfair prejudice. Reversed and remanded.


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Spicer v. State 12 S.W.3d 438 (Tenn. 2000).FACTS: Defendant had two step-daughters. One daughter told her mother that defendant had been raping her. Theother daughter was confronted by the mother, and she advised that he had touched her sexually, but not raped her. Themother reported this to the Sheriff's Department, who didn't want to get involved, because defendant was an employeethere. Mother then reported the incidents to the police, and sent the children for a rape kit. The results showed that therape of the one daughter had happened more than once, and that the other daughter's hymen was still intact. This wasconsistent with the girls' stories. Two indictments were handed down- agg. sexual battery, and rape of a child. Both

alleged same time frame of July 1, 1993 to March 4, 1994. State moved to consolidate. Defendant objected.Overruled and joined for trial. Defendant was convicted by a jury of misdemeanor assault and rape of a child. 11'29concurrent with 18 years, plus fines.

ISSUE: 1. Whether this case is a consolidation case or a severance case. 2. Whether the trial court abused itsdiscretion by trying the offenses alleged in both indictments in a single trial. Ie. whether the evidence was admissibleat trial of both offenses.

RULE(S): 8(a)- mandatory joinder 8(b)- permissive joinder.13(a)- consolidation of offenses in multiple indictments14(b)(1)- absolute right of defendant to sever permissively joined cases. No such right if the cases are part of common

scheme or plan, and same evidence admissible for both offenses.

Review of decisions concerning permissive joinder and severance of offenses pursuant to Rules 8(b) and 14(b)(1) for abuse of discretion. Trial court will be reversed if applied an incorrect legal standard.

Offenses may not be parts of a "common scheme or plan" although the offenses may be of the same or similar character. Rule 14(b)(1) can be used to sever permissively joined offenses, if the evidence of each offense is not admissible in the trial of the others . The trial court can overrule defendant's objection to consolidate, only when theoffenses are parts of a common scheme or plan and evidence of each offense is admissible in the trial of the others.

When a defendant objects to a pre-trial motion to consolidate by the state, the trial court must consider themotion by the severance provisions of Rule 14(b)(1), not the "same or similar character" standard of Rule 8(b).

Purpose of severing (Rule 8 advisory comments)- to ensure that the defendant is insulated from the evidence of other offenses when that evidence is not otherwise admissible.

When the state alleges that sexual offenses have occurred over a period of time against a single victim, then the statemay introduce supporting evidence of sexual misconduct during that time. The state is required to make an election atthe close of its proof-in-chief as to the particular offense or offenses for which it is seeking a conviction.

Common scheme or plan must be shown pre-trial. When the indictment is open-dated, and the state elects whichoffense to prosecute after the case in chief, then there is no way to meet the burden of production of the evidence pre-trial.

HOLDING:

The trial court overlooked the fact that a defendant has an absolute right to sever offenses that are merely of the "sameor similar character." State introduced no evidence of a common scheme or plan.

Issue 1- consolidation case

Issue 2- Rule 14(b)(1) may have the practical effect of requiring the state to elect the offense for conviction pre-trial,when seeking permissive joinder of open-dated indictments. Otherwise there is no way to show the common schemeor plan pre-trial.


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"When the state seeks to consolidate offenses that are alleged in open-dated indictments, the state must introducesufficient proof at the pre-trial hearing to support a finding that specific acts constitute parts of a common scheme or

plan."

It was probable that the testimony from each victim in this case bolstered the credibility of the other, and invited the jury's reliance on the appellant's perceived propensity to sexually abuse his daughters. This would have created an

unfair prejudice, affecting the outcome of the trial.

Consolidation was not harmless error. Especially in light of the fact that the jury actually convicted defendant of adifferent type of assault than the state's proof alleged. This shows some spill-over effect from the other victim's casewas likely.

Tennessee Rules of Evidence (TRE) Rule 404Character evidence not admissible to prove conduct; exceptions; other crimes .

(a) Character evidence generally . Evidence of a persons character or a trait of character is not admissiblefor the purpose of proving action in conformity with the character or trait on a particular occasion, except :

(1) Character of accused . Evidence of a pertinent character trait offered by the accused OR by the

prosecution to rebut the same.(2) Character of victim . Evidence of a pertinent character trait of the victim of crime offered by an

accused or by the prosecution to rebut the same, OR evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor .

(3) Character of a witness . Evidence of the character of a witness as provided in Rules 607, 608, and609.

(b) Other crimes, wrongs, or acts . Evidence of other crimes, wrongs, or acts is not admissible to prove thecharacter of a person in order to show action in conformity with the character trait. It may, however, be admissiblefor other purposes. The conditions which must be satisfied before allowing such evidence are:

(1) The court upon request must hold a hearing outside the jurys presence;(2) The court must determine that a material issue exists other than conduct conforming with the

character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the

evidence; (3) The court must find proof of the other crime, wrong, or act to be clear and convincing ; AND(4) The court must exclude the evidence if its probative value is outweighed by the danger of unfair

prejudice.

TRE Rule 607Impeach . The credibility of a witness may be attacked by any party, including the party calling the witness.

TRE Rule 608Evidence of character and conduct of witness.

(a) Opinion and reputation evidence of a character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:

(1) the evidence may refer only to character for truthfulness or untruthfulness, AND(2) the evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked.

(b) Specific instances of conduct. Specific instances of conduct of a witness for the purpose of attacking or supporting the witnesss character for truthfulness, other than convictions of crime as provided in Rule 609, may not be

proved by extrinsic evidence. They may, however, if probative or truthfulness (T) or untruthfulness (un-T) and under the following conditions, be inquired into on cross-examination of the witness concerning the witnesss character for Tor Un-T or concerning the character fro T or un-T of another witness as to which the character witness being cross-examined has testified. The conditions which must be satisfied before allowing inquiry on cross-examination aboutsuch conduct probative solely of T or un-T are:


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(1) hearing outside jurys presence to determine that the alleged conduct has probative value and that areasonable factual basis exists for the inquiry;

(2) conduct must have occurred no more than ten (10) years before commencement of the action or prosecution; unless the evidence may be admissible if the adverse party gives sufficient advance notice of intent to usesuch evidence for fair opportunity to contest use of such evidence; and court determines that the intesres of justice thatthe probative value of that evidence, supported by specific facts and circumstances, substantially outweighs its

prejudicial effect; AND

(3) if the witness to be impeached is the accused, the State must give reasonable written notice of theimpeaching conduct before tiral, and the court finds itha the conducts probative value on credibility outweighs itsunfair prejudicial effect on substantive issues.

(c) Juvenile conduct. A witnesss juvenile background is not general permissible for impeachment of thatwitness. The court may, however, allow evidence of such conduct if the conduct would be admissible to attack thecredibility of an adult and the court is satisfied that (unless) admission in evidence is necessary for a fair determinationof a civil action or criminal proceeding. [Case: Davis v. Alaska]

TRE Rule 609Impeachment by evidence of conviction of crime.

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has beenconvicted of a crime may be admitted if the following procedures and conditions are satisfied:

(1) The witness must be asked about the conviction on cross-examination. If the witness deniedhaving been convicted, the conviction may be established by public record. If the witness denies being the personnamed in the public record, identity may be established by other evidence.

(2) The crime must be a felony which the witness was convicted, OR the crime must have involveddishonesty or false statement.

(3) If the witness to be impeached is the accused , the State must give the accused reasonable writtennotice of the impeaching conviction before trial, and the court upon request must determine that the convictions

probative value on credibility outweighs its unfair prejudicial effect on the substantive issues.(b) Time limit. Evidence of a conviction is not admissible if a period of more than ten (10) years has elapsed

between the date of release from confinement and commencement of the action or prosecution; if the witness was notconfined, the ten (10) year period is measured for the date of conviction rather than release. Evidence of a convictionnot qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance

notice of intent to use such evidence to provide the adverse party with a fair opportunity to content the use of suchevidence and the court determines in the interests of justice that the probative value of the conviction, supported byspecific facts and circumstances, substantially outweighs it s prejudicial effect.

(c) Effect of pardon. Evidence of a conviction is not admissible under this rule if (1) the conviction ha beensubject of a pardon based on a finding of the rehabilitation of the person convicted and that person has not beenconvicted of a subsequent felony, or (2) the conviction has been the subject of a pardon based on a finding of innocence.

(d) Juvenile adjudications. Evidence of a juvenile adjudication is generally not admissible . The court may,however , allow evidence of a witness other than the accused if the conviction of the offense would be admissible toattack the credibility of an adult and the court is satisfied that the admission in evidence is necessary for a fair determination in a civil or criminal proceeding.

(e) Pendency of appeal. The pendency of an appeal of a conviction does not render evidence of that conviction

inadmissible. Evidence of the pendency of an appeal is admissible.

4-19-07There are 3 types of pleas

-Guilty-not guilty-No lo contendre

-no contest-this plea cannot be brought in a civil case arising from the same actions b/c there is noadmission of guilt.


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-accepts the punishment.-you must have the agreement from the judge for this plea.

-Alford Plea-also known as a best interest plea-waive trial and accept punishment that is in his best interest w/o admitting guilt.-judge also must agree to this plea

-the judge must agree to this b/c the ^ is waiving their rights.

There are 3 situations in which a plea can be accepted-An arrangement whereby the ^ and the prosecution agree that the ^ should be permitted to pledguilty to a charge less serious than is supported by the evidence. Court must accept this and if theydo not then the plea can be withdrawn.-An agreement whereby the ^ pleads on the nose (to the original charge), in exchange for somekind of promise from the prosecutor concerning the sentence to be imposed. Court may not acceptbut here the plea cannon be withdrawn.-Where the ^ pleads on the nose in exchange for the prosecutors promise to drop or not file othercharges. If the judge does not accept this the ^ can withdraw his plea.

Things that must happen at a plea-waiver of rights such as trial by jury

The plea must be made knowingly, intelligent, and voluntary- to make sure this happens the court must question the ^- failure to cover the things that the are suppose to negates the plea- ^ must under stand the nature of the charge that he is charged with and the nature of the charge he

is pleading to if different.- That they have a right to counsel- The court must tell the ^ that the counsel will be w/ them at all stages of the case.- That they have a right to plea not guilty- Jury trial, cross examine

The state reads facts into record

-judge asks the ^ if these facts are correct-judge then asks how do you plea-the ^ is under oath for this

Post conviction-lawsuit filed by the convicted, saying that something was not afforded to them, such as ineffectivecounsel.

RULE 11. PLEAS(a) Plea Alternatives.(1) In General. A defendant may plead not guilty, guilty, or nolo contendere. The court shall enter a plea of not guiltyif a defendant refuses to plead or if a defendant corporation, limited liability company, or limited liability partnershipfails to appear.(2) Nolo Contendere. A defendant may plead nolo contendere only with the consent of the court. Before accepting a

plea of nolo contendere, the court shall consider the views of the parties and the interest of the public in the effectiveadministration of justice.(3) Conditional Plea. A defendant may enter a conditional plea of guilty or nolo contendere in accordance with Rule37(b).(b) Considering and Accepting a Guilty or Nolo Contendere Plea.(1) Advising and Questioning the Defendant. Before accepting a guilty or nolo contendere plea, the court shall addressthe defendant personally in open court and inform the defendant of, and determine that he or she understands, thefollowing:(A) The nature of the charge to which the plea is offered;


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(B) the maximum possible penalty and any mandatory minimum penalty;(C) if the defendant is not represented by an attorney, the right to be represented by counsel--and if necessary have thecourt appoint counsel--at trial and every other stage of the proceeding;(D) the right to plead not guilty or, having already so pleaded, to persist in that plea;(E) the right to a jury trial;(F) the right to confront and cross-examine adverse witnesses;(G) the right to be protected from compelled self-incrimination;

(H) if the defendant pleads guilty or nolo contendere, the defendant waives the right to a trial and there will not be afurther trial of any kind except as to sentence; and(I) if the defendant pleads guilty or nolo contendere, the court may ask the defendant questions about the offense towhich he or she has pleaded. If the defendant answers these questions under oath, on the record, and in the presence of counsel, the answers may later be used against the defendant in a prosecution for perjury or false statement.(2) Insuring That Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court shall address thedefendant personally in open court and determine that the plea is voluntary and is not the result of force, threats, or

promises (other than promises in a plea agreement). The court shall also inquire whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the district attorney general and the defendantor the defendant's attorney.(3) Determining Factual Basis for Plea. Before entering judgment on a guilty plea, the court shall determine that thereis a factual basis for the plea.

(c) Plea Agreement Procedure.(1) In General. The district attorney general and the defendant's attorney, or the defendant when acting pro se, maydiscuss and reach a plea agreement. The court shall not participate in these discussions. If the defendant pleads guiltyor nolo contendere to a charged offense or a lesser or related offense, the plea agreement may specify that the districtattorney general will:(A) move for dismissal of other charges;(B) recommend, or agree not to oppose the defendant's request for, a particular sentence, with the understanding thatsuch recommendation or request is not binding on the court; or (C) agree that a specific sentence is the appropriate disposition of the case.(2) Disclosing a Plea Agreement.(A) Open Court. The parties shall disclose the plea agreement in open court on the record, unless the court for goodcause allows the parties to disclose the plea agreement in camera.

(B) Timing of Disclosure. Except for good cause shown, the parties shall notify the court of a plea agreement at thearraignment or at such other time before trial as the court orders.(3) Judicial Consideration of a Plea Agreement.(A) Rule 11(c)(1)(A) or (C) Agreement. If the agreement is of the type specified in Rule 11(c) (1)(A) or (C), the courtmay accept or reject the agreement pursuant to Rule 11(c)(4) or (5), or may defer its decision until it has had anopportunity to consider the presentence report.(B) Rule 11(c)(1)(B) Agreement. If the agreement is of the type specified in Rule 11(c)(1)(B), the court shall advisethe defendant that the defendant has no right to withdraw the plea if the court does not accept the recommendation or request.(4) Accepting a Plea Agreement. If the court accepts the plea agreement, the court shall advise the defendant that it willembody in the judgment and sentence the disposition provided in the plea agreement.(5) Rejecting a Plea Agreement. If the court rejects the plea agreement, the court shall do the following on the record

and in open court (or, for good cause, in camera):(A) advise the defendant personally that the court is not bound by the plea agreement;(B) inform the parties that the court rejects the plea agreement and give the defendant an opportunity to withdraw the

plea; and(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorablytoward the defendant than provided in the plea agreement.(d) Inadmissibility of Pleas, Offers of Pleas, and Related Statements. The admissibility of a plea, plea discussion,or any related statement is governed by Tennessee Rule of Evidence 410 .(e) Record of Proceedings. There shall be a verbatim record of the proceedings at which the defendant enters a plea.If there is a plea of guilty or nolo contendere, the record shall include the inquiries and advice to the defendant required
http://web2.westlaw.com/find/default.wl?rp=%2Ffind%2Fdefault.wl&vc=0&DB=1006373&DocName=TNRREVR410&FindType=L&AP=&fn=_top&rs=WLW7.04&mt=Tennessee&vr=2.0&sv=Splithttp://web2.westlaw.com/find/default.wl?rp=%2Ffind%2Fdefault.wl&vc=0&DB=1006373&DocName=TNRREVR410&FindType=L&AP=&fn=_top&rs=WLW7.04&mt=Tennessee&vr=2.0&sv=Split


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under Rule 11(b) and (c).

RULE 32. SENTENCE AND JUDGMENT(f) Withdrawal of Guilty Plea.(1) Before Sentence Imposed. Before sentence is imposed, the court may grant a motion to withdraw a guilty plea for any fair and just reason.(2) After Sentence But Before Judgment Final. After sentence is imposed but before the judgment becomes final, the

court may set aside the judgment of conviction and permit the defendant to withdraw the plea to correct manifestinjustice.

CHAPTER 14 GUILTY PLEASPLEA BARGAINING

The majority of criminal cases are disposed of by pleas of guilt rather than trial. The common forms of plea negotiation

o An arrangement whereby the ^ and the prosecution agree that the ^ should be permitted to pled guiltyto a charge less serious than is supported by the evidence.

o An agreement whereby the ^ pleads on the nose (to the original charge), in exchange for some kindof promise from the prosecutor concerning the sentence to be imposed.

o Where the ^ pleads on the nose in exchange for the prosecutors promise to drop or not file other charges.

Bordenkircher v. HayesFACTS: After being indicted on a charge of uttering a false instrument. Hayes was told by the prosecutor that if hedidnt plea guilty to that charge the prosecutor would re-indict Hayes under the states Habitual Criminal Act, and if convicted, he would be sentenced to life in prison, Hayes did not pled guilty and the prosecutor re-indicted him on themore serious charge. Hayes was found guilty and, as required by the Act was sentenced to life in prison. After theKentucky Court of Appeals affirmed the sentence, Hayes petitioned the federal court for a writ of habeas corpus. Thefederal court denied the writ, but the Sixth Circuit Court of Appeals reversed, holding that the prosecutors conductwas a vindictive exercise of the prosecutors discretion.

ISSUE: Is a vindictive exercise of the prosecutors discretion and a violation of the Due Process Clause to carry out athreat made during plea negotiations to re-indict a criminal ^ on more serious charges if the ^ does not pled to theoffenses with which he was originally charged?

HOLDING: No, reversed.

RULE OF LAW: It is not a vindictive exercise of the prosecutors discretion and a violation of the Due Process Clauseto carry out a threat made during plea negotiations to re-indict a criminal ^ on more serious charges if the ^ does not

pled to the offenses with which he was originally charged

REASONING: A prosecutor does not vindictively exercise his or her discretion, and therefore does not violate due process, by carrying out a threat to re-indict a ^ on more serious charges if the ^ does not pled to the more originaloffense. Hayes was fully informed of the terms of the plea offer and understood that he risked being re-indicted under the Habitual Criminal Act if he did not pled guilty. As a practical matter, the case was no different than if Hayes hadinitially been indicted as a recidivist and the prosecutor had offered to drop that charge as part of a plea agreement.While it is a violation of the Due Process Clause to punish a person for legally attacking a conviction, there is no suchelement of punishment or retaliation in plea bargaining so long as the ^ is free to accept to accept or reject the

prosecutors offer.

DISSENT: by Powell and Blackmun


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Santobello v. New York FACT: Santobello agreed to pled guilty to a lessor-included offense in exchange for the prosecutors promise that hewould dismiss the more serious charge and that he would not make a recommendation at the sentencing hearing. Atthe sentencing hearing, the original prosecutor was replaced by a new prosecutor who recommended that Santobelloreceive the maximum prison sentence, which the judge imposed. ^ sought to withdraw his guilty plea, but his requestwas denied. His conviction was affirmed on appeal.

ISSUE: Is the prosecutors office bound by a promise not to make a sentencing recommendation when that promisewas the consideration for a plea of guilty.

HOLDING: Yes, vacated and remanded

RULE OF LAW: when a plea of guilty has been entered in consideration of a promise made by a prosecutor, the prosecutor must fulfill that promise.

REASONING: Plea agreements presuppose a fairness in securing the agreement between the ^ and the prosecutor.When a promise or agreement of the prosecutor is the inducement for the ^ to pled guilty, that promise must befulfilled. Here, the state failed to keep a commitment concerning a sentencing recommendation on the ^s guilty plea,so the case must be remanded to the state court to decide whether the circumstances require only that there be specific

performance of the agreement on the guilty plea, or whether the circumstances require that the petitioner be granted theopportunity to withdraw his guilty plea.

CONCURRENCE: Douglas and Marshall in part.

Mabry v. JohnsonFACTS: Johnson was convicted of burglary, assault, and murder, but the Arkansas Supreme Court set aside the murder conviction. As a result, ^ began serving concurrent twenty-one and twelve year sentences for burglary and assault.During the retrial of the murder charges, the prosecutor proposed to recommend a concurrent 21 year sentence to the

judge if ^ would pled guilty to a charge of accessory to felony murder. When ^ accepted the plea bargain the next day,however, the prosecutor claimed the offer was a mistake and that the recommendation would be a 21 year consecutivesentence in exchange for the guilty plea. ^ declined the offer and went to trial. After a mistrial was declared, the

prosecutor made a second offer, which ^ accepted, and ^ was sentenced to another 21 year sentence to e servedconsecutively. On habeas review, a federal court of appeals reversed the conviction, holding that the ^s acceptance of the plea proposal prevented the prosecutor from withdrawing it.

ISSUE: Does a ^s acceptance of a prosecutors proposed plea bargain create a constitutional right to specificenforcement of the bargain?


RULE OF LAW: A voluntary and intelligent plea of guilty made by an accused person, who has been advised bycompetent counsel, may not be collaterally attacked.

REASONING: A voluntary and intelligent plea of guilty made by an accused person, who has been advised bycompetent counsel, may not be collaterally attacked. The validity of a plea is called into question only when itsvoluntariness may be in debate. Here, ^ freely pleaded guilty knowing that the prosecutor would recommend aconsecutive sentence. His inability to enforce the prosecutors earlier mistaken offer has no constitutionalsignificance, for it does not affect the voluntariness of his acceptance of the second plea. ^ was not denied a libertyinterest in a fundamentally unfair way.

United States v. Benchimol


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FACTS: ^ pled guilty to a mail fraud in exchange for the Governments recommendation of probation conditioned onrestitution. The court disregarded the recommendation and sentenced ^ to 6 years of juvenile treatment andsupervision. He moved to withdraw his plea or vacate the sentence, claiming the Government did not comply w/ the

plea bargain. The court denied the motion. On appeal, the court of appeals reversed b/c the Government did not infact recommend probation to the court, but merely concurred in the ^s counsels recommendation.

ISSUE: must the government explain the reasons underlying a sentencing recommendation to comply w/ a plea

bargain?


RULE OF LAW: Each party must comply w/ the precise terms of a plea agreement.

REASONING: Under Rule 11(e) of the federal rules of criminal procedure, the government may agree to recommenda particular sentence or to not oppose a ^s recommended sentence as part of a plea bargain. The rule, however, doesnot define the degree of enthusiasm w/ which the government must act. The government may, as part of the plea,agree to explain to a court its reasoning for its recommendation, but the evidence here does not suggest it made such anagreement.

Concurrence StevensDissent Brennan

United States v. Ruiz

FACTS: ^ was offered a fast track plea bargain on drug possession charges. The bargain required ^ to waiveindictment, trial, and appeal. In return the U.S. would recommend a downward departure from the sentence that wouldotherwise have been imposed on Ruiz. The agreement also contained a statement that the U.S. had turned over anyknown information regarding the factual innocence of ^ and acknowledged the continuing duty of the U.S. to providesuch information, but required ^ to waive her right to receive impeachment information regarding any informants or witnesses, as well as the right to receive information supporting any affirmative defense. ^ refused to agree w/ thewaiver of the right to receive impeachment information and the plea bargain was withdrawn. ^ pleaded guilty w/o an

agreement, and her request for a downward departure in her sentence was denied. The 9th

Circuit vacated her sentence,holding that the obligation to provide impeachment information is the same prior to a plea agreement as it is at trial.The court held that the right to receive this information could not be waived.

ISSUE: Do the 5 th and 6 th Amendments require federal prosecutors, before entering into a binding plea agreement w/ acriminal ^, to disclose impeachment information relating to any informants of other witnesses?


RULE OF LAW: the Constitution does not require disclosure of impeaching information about witness testimony before entry of a guilty plea.

REASONING: the constitution does not require disclosure of impeaching information about witness testimony beforeentry of a guilty plea. Impeachment Information relates to the fairness of a trial, not whether a plea is voluntary. Thelaw ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the ^ fully understands the nature of the right and how it would

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