Tennessee Criminal Lawyer Blog

As the past couple of articles on this blog have noted, criminal defendants have the right to represent themselves at trial thanks to the United States Supreme Court holding in Faretta v. California. However, as has also been noted, this can be a risky proposition. The previous article focused on the complexity of the rules of evidence and how they may pose a problem for inexperienced defendants at trial. This article focuses on an extension of that principle: ineffective assistance of counsel.

Ineffective assistance of counsel is one of the most popularly raised issues in criminal appeals. This is primarily so, because many defendants who are convicted at trial feel (rightly or wrongly) that if their lawyer had been more effective or attentive that they would have been acquitted. It is true that ineffective assistance of counsel does sometimes prejudice defendants at trial and potentially alter the outcome. For this reason, appellate courts will allow a defendant to put on evidence on appeal that his trial counsel was ineffective. In order to prevail on such a claim, however, the defendant must show that his or her trial counsel was indeed ineffective and that the attorney’s ineffectiveness altered the outcome of the case. This is a very big burden and is not often met.

Continue reading "Can I Represent Myself?: Ineffective Assistance of Counsel" »

Yesterday’s blog discussed the United States Supreme Court holding in Faretta v. California that a defendant in a criminal trial has a constitutional right to self-representation. Yesterday’s blog also noted that it is very often a bad idea for defendants to forego either hiring an East Tennessee criminal defense attorney or accepting the assistance of a public defender in favor of representing themselves. The reasons for this are plentiful and will be the subject of the next few blogs on this site.

One of the primary reasons a defendant should not choose self-representation at trial is that the rules of evidence are extremely complex and often vary depending on the jurisdiction. These rules govern how evidence is introduced and admitted at trial, how witnesses can be questioned, how evidence issues are preserved for appeal, how to qualify witnesses as experts, and a multitude of other evidentiary issues that may arise during a trial. The importance of a thorough knowledge of these rules can be seen from the fact that the judge in Farettai reversed his ruling and ordered that the defendant be represented by an attorney after the defendant did not demonstrate a satisfactory knowledge of the rules of evidence at a pretrial hearing. After all, what could possibly be more important in a criminal trial than knowing how and when to introduce favorable or exculpatory evidence and to keep your opponent from doing the same.

Trying to gain a working knowledge of these rules prior to trial would prove overwhelming for most criminal defendants. The criminal trial process can add a lot of anxiety and stress to a defendant’s life, which would complicate the process of preparing for self-representation even further. Often it would be a better course of action to rely on an experienced criminal defense attorney who has not only studied the rules of evidence thoroughly and knows how to use them, but also has experience applying those rules to real-life situations during the course of a criminal trial.

The United States Constitution guarantees a plethora of rights to the accused in criminal trials including rights that have previously been discussed in this blog such as the right to remain silent, the right to an attorney, and the right to be free from unreasonable searches and seizures. One right that has not been previously been discussed on this site, however, is the right not to have an attorney. That is, do criminal defendants have the right to represent themselves, also known as proceeding pro se, or can the court force them to have an attorney at trial?

The United States Supreme Court took encountered this issue head-on in Faretta v. California in 1975. In Faretta, the defendant was charged with grand theft and a public defender was appointed to represent Faretta at his arraignment. Prior to trial, Faretta (believing that he could provide himself with the best representation because the public defender had a heavy case load) requested that the public defender be removed from the case and that Faretta be allowed to represent himself. The trial judge warned Faretta that he believed him to be “making a mistake” and informed him that he would receive no special favors at trial, but the judge accepted Farretta’s waiver of counsel and allowed him to proceed pro se. A few weeks later, the judge held a hearing at which he sought to test Faretta’s knowledge of courtroom procedure and the rules of evidence. After the hearing, the judge was not convinced that Faretta was familiar enough with courtroom rules and procedure to represent himself at trial and reversed his earlier ruling, appointing an attorney for Faretta. After Faretta was convicted at trial, he appealed, arguing that he was denied his constitutional right to represent himself at trial.

Continue reading "Can I Represent Myself?" »

Mootness is an issue that is not encountered all too often in criminal law, but it can have important consequences when it surfaces. When an issue is moot, it basically means that circumstances surrounding or pertaining to the issue are such that there is no reason to take further legal proceedings with regard to the issue or that the issue is beyond the scope of court proceedings. Basically, it just means there is no reason to discuss or treat the issue any further. The doctrine of mootness is well-illustrated by a case that recently came before the Tennessee Court of Criminal Appeals.

In State v. Willis, the defendant was charged with DUI and went to trial. At the trial, there was an issue as to whether a breathalyzer machine was available and the defendant objected to the court’s admission of the breathalyzer results into evidence. The jury, even after considering the breathalyzer results, found the defendant not guilty of DUI per se, but he was still convicted of DUI by impairment. He was sentenced to eleven months and twenty-nine days, sixty days to be served in a workhouse and the rest on probation. He tried to appeal the decision based on the trial court’s admission of the breathalyzer results.

The Court of Criminal Appeals ruled that the issue he raised for appeal was moot, because the jury acquitted the defendant of DUI per se, which is what the breathalyzer test establishes. The defendant was convicted of Tennessee DUI by impairment based on other evidence which included that the officer saw defendant toss beer can into back seat of his truck, the defendant smelled of alcohol, had bloodshot eyes, and stumbled when he walked, and that the defendant failed three field sobriety tests on scene and failed them again when he repeated the tests at the police station. The Court thus found that the evidence was sufficient to convict the defendant of DUI by impairment.

In this case, the admission of the breathalyzer test was a mot issue because the breathalyzer results portended only to the issue of whether the defendant was guilty of a DUI per se, which by statute is established if a defendant has a BAC in excess of the legal limit. Since the defendant was acquitted by the jury on the DUI per se charge, it made no difference for all practical purposes whether the breathalyzer results were admitted properly. Thus, the defendant stood nothing to gain by pressing the issue on appeal.

Source: (State v. Willis, 35 TAM 11-27, 1/20/10, Jackson, McLin, 7 pages.)

For various reasons, a guilty plea is not an agreement to be entered into lightly and the considerations that the defendant must take into account extend beyond merely what punishment or lack thereof is being offered by the state. For example, entering a guilty plea may also impose additional burdens on a defendant (depending on the terms of the agreement) including the loss of the right to appeal the case.

This principle is illustrated by taking a look at State v. Weaver, a case that recently came before the Tennessee Court of Criminal Appeals. In Weaver, the defendant pled guilty to possession of cocaine in Tennessee with intent to sell and was given a four-year suspended sentence. Soon thereafter, he tried to withdraw his guilty plea, claiming that at the time he pleaded guilty, he was not aware that he was forfeiting his right to appeal a question of law relating to his charges. The Court of Criminal Appeals denied the defendant’s request to withdraw his guilty plea, holding that the defendant’s situation did not meet the standard of “manifest injustice” required to withdraw the plea.

Continue reading "Appealing A Guilty Plea" »

Prosecutors in criminal cases are often placed in difficult positions. On one hand, they have to be diligent in representing the state for which they work while on the other hand, they have to avoid doing or saying anything inappropriate that might be challenged by the defendant on appeal as having been unduly harmful to the defendant’s case. A good example of this principle can be found by looking at State v. Young, a case that recently came before the Tennessee Court of Criminal Appeals.

In Young, the defendant alleged that the prosecutor made several inappropriate remarks during closing arguments that unfairly prejudiced the jury against the defendant. However, since the defense counsel only objected to one such remark (the prosecution calling the defendant a “pervert”) and did not address any other remarks in the defendant’s motion for a new trial, the Court of Criminal Appeals only considered the use of the term “pervert” in deciding whether or not the defendant should be granted a new trial. The court found that although the use of the term “pervert” was an inappropriate use of a personal epithet by the prosecutor, it was not so prejudicial to defendant as to harm his case because defense counsel objected immediately and the trial court sustained the objection and made clear that the comment was inappropriate. Also, the defense counsel repeated the term in his closing argument and there was no evidence that the prosecutor acted maliciously.

Misconduct by prosecutors is often unintentional and is done without malice. However, it still may be prejudicial to the defendant’s case and may even warrant a new trial. In this case, much of what the defendant wanted to raise in front of the Court of Criminal Appeals was seemingly beyond the scope of the appeal at least in part because steps were not taken to preserve the issues for the record. The issue of prosecutorial misconduct thus also emphasizes the need for skilled and experienced Knoxville criminal defense counsel who can work to ensure that the defendant receives a fair trial.

Source: (State v. Young, 35 TAM 11-23, 1/15/10, Jackson, McLin, 7 pages.)

Search warrant issues arise with great frequency in the East Tennessee criminal law context, as law enforcement officials often seize narcotics, weapons, or some other evidence that is extremely damaging to the defendant’s case. As such, the defendant needs to find a way to keep such evidence from getting admitted if possible. The defendant will thus look for a way to argue that the search is unconstitutional and seek to have the evidence excluded. Defendants have a constitutional right to be free from unreasonable searches and seizures of their homes, persons, papers, and effects under the Fourth Amendment to the United States Constitution. Whether a particular area or piece of property falls within these protected categories has often been a subject of contention in criminal cases.

As a result of such a controversy, the United States Supreme Court established what is known as the “Open Fields” doctrine. In Hester v. United States, the Supreme Court ruled that although a person is free from unreasonable seizures with respect to the four categories mentioned above, open fields do not fall within any of those categories. In doing so, the court basically held that a citizen cannot reasonably expect to have a constitutionally protected right of privacy with respect to open fields, in part because it would be near-impossible to safeguard that privacy in many situations.

Continue reading "Search Warrants: "Open Fields" Doctrine" »

When the Tennessee Supreme Court hears a criminal case, it has the ability to redefine, reinterpret or otherwise affect an area of Tennessee criminal law in a substantial way. Thus every case that comes before the Court is worthy of discussion since it may have a lasting impact on the criminal framework. One such case, State v. Brown, will consider two separate issues that are fairly common in the criminal context.

The first issue is that of lesser included offenses. A lesser included offense is an offense of which all the elements are included in a greater offense, but the greater offense has additional or different elements and a more severe penalty (with rare exceptions). In this case, the defendant contended that the trial court erred by failing to instruct the jury as to criminally negligent homicide when the defendant was charged with felony murder. Instruction as to lesser included offenses can be key for defendants in cases like this, primarily because it informs the jury that there are lesser offenses for which the defendant can be convicted. The jury may not be willing to let a defendant walk away without facing some sort of punishment in some situations, so they may be tempted to convict the defendant of a more serious offense than is actually fair in order to prevent the defendant from walking away scot-free. The defendant will try to convince the Tennessee Supreme Court that the trial court erred in failing to let the jury know that a lesser included offense was available rather than just the felony murder charge he was facing.

Continue reading "More on the Upcoming Tennessee Supreme Court Docket" »

One of the most difficult things about the practice of law is that the law is constantly evolving. Even laws that have been worded exactly the same way for hundreds of years are always being reinterpreted and laws that seem to have plain meaning can be a source of controversy when they are applied to complicated or novel factual scenarios. Some such controversies make their way to the Tennessee Supreme Court, which has several notable criminal cases on its upcoming docket.

One case, styled State v. Swift presents an interesting fact situation that calls for an interpretation of Tennessee’s aggravated robbery statute. The issue presented in this case is whether the evidence is sufficient to justify convicting the defendant of aggravated robbery where the violence or intimidation occurred after the taking that constituted the robbery was complete. If the evidence is insufficient, the defendant seems likely to be convicted of theft and aggravated assault, which could potentially result in a much lower sentence for the defendant than would the aggravated robbery charge.

Continue reading "Tennessee Supreme Court Has Several Criminal Cases On the Docket" »

The criminal process is set up so that defendants have a multitude of options at their disposal for making sure they are able to obtain a fair sentence. One of these options is the right to appeal, and defendants can appeal on a wide range of subjects, one of which is that the defendant received a sentence that was excessive. This will usually be based on the theory that the sentencing court did not take the proper considerations into account before sentencing. State v. Pedigo, a recent case heard by the Tennessee Court of Criminal Appeals, serves to illustrate this issue.

In Pedigo, the defendant pled guilty to aggravated burglary and theft over $1,000. He was sentenced as a Range III offender to 15 years in jail. He appealed, arguing that the sentence was excessive. During the sentencing phase, the trial court stated that it had considered mitigating factors but did not state which factors it had considered or how much weight each was given. Likewise, the trial court sought to apply several enhancement factors, but the trial court only discussed one of them. The trial court also failed to state the process by which it balanced the mitigating and enhancement factors in determining the sentence. The Court of Criminal Appeals found that due to these factors, the record did not properly establish that the trial court had considered all of the relevant sentencing principles before sentencing the defendant. As a result, the Court of Criminal Appeals ordered that the case be sent back down to the trial court for a more specific sentencing procedure in which the trial court would properly identify all of the relevant mitigating and enhancement factors, discuss the facts supporting each, and outline how the factors were balanced in determining the sentence.

This case demonstrates that defendants can appeal if they think that they were excessively sentenced due to a flaw in the sentencing process. The good news is that if this appeal is successful, the defendant’s case will be re-evaluated, and he or she may receive a new sentence. The bad news is that the new sentence may be a larger sentence than the first one, and if it is properly reached it may not be overturned. Thus, defendants should always seek out the advice of an experienced East TN criminal defense attorney before deciding whether or not to appeal and on what grounds.

Source: (State v. Pedigo, 35 TAM 5-27, 12/2/09, Nashville, Wedemeyer, 6 pages.)

Self-defense is a theory of defense that is generally available in Tennessee to those who are charged with or accused of crimes involving the use of force against another individual. The basic premise behind the defense is that one person has the right to use a reasonable amount of force against another to prevent the suffering of death or bodily harm. This defense is recognized by statute in Tennessee, which effectively limits its applicability to situations where the elements are met. In other words, for a defendant to properly claim that he or she acted out of self-defense, certain conditions must have existed at the time the defendant committed the act for which he or she was charged. Trying to prove all of the elements of the self-defense statute is tricky in a criminal case and will often require the expertise of a skilled Knoxville criminal defense attorney.

The applicability of this defense will obviously depend on the circumstances surrounding the conduct, but certain basic conditions must always be present. Simply put, the defendant (the person who used force and is now claiming self-defense as a defense to criminal charges) must have reasonably and honestly believed that another person was using or about to use unlawful force that presented an imminent danger of death or serious bodily injury to that person or someone else which would justify the immediate use of necessary force.

Continue reading "Self-Defense in Tennessee" »

The mitigating factor discussed in today’s blog can be found in T.C.A. section 40-35-113(10) and reads:

“The defendant assisted the authorities in locating or recovering any property or person involved in the crime;”

This can be a very useful mitigating factor for defendants, and is one that has been extended by Tennessee courts to encompass more than what is revealed in the statute. For example, this factor has been extended to apply where the defendant assists the authorities in locating not only other persons involved in committing the crime but also persons or property who were the victims of the crime. This would technically apply even where the victim of the crime is deceased and the defendant assisted authorities in locating the body.

Continue reading "Mitigating Factors: Assisting the Authorities" »

One potential mitigating factor that defendants can use at sentencing in an effort to get a reduced sentence is where “the defendant, 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.” This mitigating factor is one that will not be used all that often because it requires that the circumstances surrounding the conduct be unusual, but when such unusual circumstances give rise to the criminal conduct in question, this factor can be highly effective.

One example of when this factor might be applicable comes from a somewhat bizarre story that took place on Monday in Syracuse, New York, where a man was apparently hanging out on a street corner while intoxicated when he became the victim of a random drive-by shooting. The man, wounded in his shoulder by a single gunshot, then tried to drive himself to the hospital. Unfortunately, he began his trek on the wrong side of the road and failed to correct that mistake, smashing into another vehicle. He was charged with DWI. The personal injury law consequences of this ill-fated decision are discussed here.

Continue reading "Mitigating Factors: Unusual Circumstances" »

Today’s blog unsurprisingly continues with the recent focus of our criminal blogs on the mitigating factors defendants may be able to use to receive a more favorable outcome at sentencing. These mitigating factors are recognized by the laws of the State of Tennessee as factors that tend to mitigate a defendant’s responsibility for a crime and may lead to the defendant receiving a less severe sentence following a conviction.

One such mitigating factor is explained as: “Before detection, the defendant compensated or made a good faith attempt to compensate the victim of criminal conduct for the damage or injury the victim sustained.” This could occur in a myriad of ways. For example, someone could have stolen a significant amount of money from a friend or employer and went back to that person before being discovered by the authorities and offered to pay them back the money or set up some sort of payment plan. It could also happen if a person was driving while intoxicated and crashed into another person’s home, causing damage to the structure, and before being discovered by authorities, the offender went to that person’s house and offered to pay for the necessary repairs or offered to make the repairs himself. Basically, this mitigating factor is pretty straightforward: if the offender offers to make amends or repay the victim somehow before being discovered or detected by the police, then the offender may be able to use this factor to obtain a more lenient sentence following conviction.

Continue reading "Mitigating Factors: Righting the Wrong before Detection" »

Our blog has recently focused on mitigating factors and with good reason. Statutorily-recognized mitigating factors are a tremendous tool that defendants can use in Tennessee to obtain more favorable treatment at sentencing. Sometimes this means a defendant can obtain a sentence below the presumptive sentence, and sometimes mitigating factors simply serve to counteract the effect of enhancement factors, allowing the defendant to avoid a sentence harsher than the presumptive sentence.

One of the mitigating factors that is especially applicable today can be found in T.C.A. section 40-35-113(7) and reads that one mitigating factor can be that “the defendant was motivated by the necessity to provide necessities for the defendant’s family or the defendant’s self.” The applicability of this factor, however, will be largely dependent on the circumstances. For example, a defendant who breaks in to an electronics store and steals a plasma TV will have a harder time convincing the sentencing judge that this factor should apply than will a defendant who is caught shoplifting baby food or diapers. That is not to say that the former defendant would never be able to convince the judge that this factor applies to the crime they committed, but judges will clearly be more accepting of the latter.

Continue reading "Mitigating Factor: Necessity" »

Over thirty years ago, the United States Supreme Court decided the case of Delaware v. Prouse, where they tackled the issue of arbitrary traffic stops of drivers by police officers or other similar government officials. Although over three decades have passed since the decision, the ramifications of the case are still extremely pertinent today. In Prouse, the Supreme Court held that police officers cannot arbitrarily or randomly stop vehicles in order to check whether the driver is licensed and check the registration status of the vehicle. Such a stop violates the right to privacy guaranteed by the United States Constitution.

The Court refused to give law enforcement unbridled discretion to pull vehicles over on a whim or a hunch. This has been extrapolated to mean that officers must have probable cause to initiate a traffic stop of a vehicle. The rule in Tennessee that flows from this reasoning is that a police officer wishing to make an investigatory stop (meaning a stop where the officer has not witnessed the vehicle commit a traffic violation) must have reasonable suspicion, supported by specific facts, for making the stop or else the stop is illegal.

Continue reading "Arbitrary Traffic Stops in Tennessee" »

Many of our previous blogs have discussed mitigating factors that may be useful to defendants in the sentencing phase of their criminal trials and this one continues that trend. The fact that the defendant played a minor role in the offense for which he or she was convicted is a useful mitigating factor recognized by the State of Tennessee that may serve to reduce the defendant’s sentence. To make use of this factor, the defendant simply needs to prove that he or she was convicted of an offense in which he or she played a minor role as compared to others who may have played a more significant role in the offense. Basically, the defendant is saying that other people were more responsible for, or played a bigger part in, the commission of the offense than the defendant.

A good example of this is provided by a botched robbery attempt that occurred in Conroe, Texas recently. The robbery was initially scheduled to be a four-man operation, but all four did not participate. The suspected getaway driver, exhibiting the kind of calm under pressure that most only dream of, was found by police sleeping soundly a couple of blocks from the jewelry store that was the target of the robbery attempt. Evidence in the car reportedly linked him to the robbery. His services, however, were not needed as the other participants failed to disable the alarm and were apprehended before they could execute the burglary.

Continue reading "Mitigating Factors: Minor Role in the Offense" »

Statutorily-recognized mitigating factors are among the most powerful tools available to a defendant seeking to argue for a reduced sentence. These factors allow the defendant to claim that certain aspects of his or her alleged criminal activity fits into one or more categories recognized by the State of Tennessee as behavior or circumstances that make an offense less serious than it otherwise would be. One statutorily-recognized mitigating factor is that the offense did not threaten or cause serious bodily injury. Stated another way, one could simply say the crime was one of non-violence.

It is not difficult to deduce the reasoning behind the recognition of non-violence as a mitigating factor. Offenses are clearly more serious where they endanger someone’s life, put someone at risk of harm, or actually injure or kill a victim. Tennessee thus allows a defendant to use the fact that he or she did not injure, or pose the risk of injury to, a victim during the commission of the criminal activity in question.

Continue reading "Mitigating Factors: Non-Violence" »

Criminal sentencing can be a confusing issue for many defendants. For example, if a defendant is looking at a Class B felony conviction, he or she will be looking at eight to thirty years. Obviously there is a huge difference between serving eight years in prison and serving thirty years in prison, meaning the decision-making process behind determining where in the range of possible sentences to sentence a defendant is of primary importance in criminal cases.

Tennessee law sets forth a “presumptive sentence” for each of its five felony classifications. Being the “presumptive sentence” means that sentence is the appropriate one for that felony classification in the absence of mitigating or enhancement factors. Most importantly for criminal defendants, the use of a presumptive sentence forbids the court from imposing a higher sentence unless the sentencing court determines that enhancement factors exist by a preponderance of the evidence. For Class B, C, D, and E felonies, the presumptive sentence is the minimum sentence in the applicable range, meaning:

• For Class B felonies, the presumptive sentence is eight years


• For Class C felonies, the presumptive sentence is three years


• For Class D felonies, the presumptive sentence is two years


• For Class E felonies, the presumptive sentence is one year

Continue reading "Presumptive Sentences in Tennessee" »

A statute of limitations is a statute that declares a maximum length of time during which a legal claim can be made after which time it is no longer available. For example, Tennessee’s statute of limitations on petitions for post-conviction relief in criminal cases is one year from the date on which judgment becomes final in cases where no appeal is taken. As a general rule, petitions for post-conviction relief that are filed after the statute of limitations has run are time-barred and the court will not consider them. However, there are three statutorily recognized exceptions that can work to defeat the statute of limitations and enable a defendant to bring an untimely petition for post-conviction relief:

1. Claims based on an appellate court ruling concerning a constitutional right not recognized at the time of the trial and given retroactive effect by the appellate courts


2. Claims based upon newly-discovered evidence which establishes that the petitioner is actually innocent of the crime


3. Claims which arise out of a situation where the petitioner received an enhanced sentence for a crime based on previous convictions which were later held to be invalid.

Continue reading "Statute of Limitations: Exceptions" »

In a criminal trial, there is a substantial difference between questions of law and questions of fact. While the issue of what distinguishes the two questions is ultimately more complex than the examination necessary for the purposes of this blog, it will be sufficient here to say that questions of law are decided by the court while questions of fact are decided by a jury. This means that the jury can decide not only whether the fact is true or false, but how much weight should be attributed to the fact for purposes of making a guilt or innocence determination.

One issue that is a question of fact is the result of a field sobriety test performed pursuant to a DUI stop. In State v. Lowe, the defendant was arrested and charged with a DUI for, among other things, failing to perform a field sobriety test adequately. The defendant apparently was administered the “walk-and-turn” test and the “one-legged stand” test and was unable to successfully perform either. The defendant argued that the results of such tests should not be considered by the jury because the police officer responsible for administering the tests testified at trial that the results of both tests are less than 70% accurate. The court correctly ruled that both the evidence regarding the defendant’s performance on such tests and the ability of the tests to measure a driver’s impairment are issues of fact for the jury to decide.

Continue reading "Field Sobriety Test Results are Issues of Fact" »

In a case styled State v. Williams, the Tennessee Court of Criminal Appeals recently overturned a trial judge’s decision to revoke a defendant’s probation by holding that it was based on the wrong standard of proof. The defendant had previously pleaded guilty to being an accessory after the fact and was sentenced to one year in the county workhouse. Rather than being forced to serve the time, the defendant’s sentence was suspended and the defendant was placed on supervised probation. Soon thereafter, the defendant was arrested and charged with being a felon in possession of a handgun and several felony drug offenses. As a result, a probation violation warrant was issued and a trial judge revoked defendant’s probation based on the finding that there was probable cause that the defendant had committed the offenses with which he had been charged. The defendant contended that the trial judge had improperly revoked probation based on the wrong standard of proof. The Tennessee Court of Criminal Appeals agreed.

T.C.A. §40-35-311 provides that a trial court may revoke a suspended sentence and reinstate an original sentence if it finds by a preponderance of the evidence that the defendant has violated the terms of his probation. This means that a trial court must go beyond the mere finding that there is probable cause to believe a defendant violated probation by committing new offenses but must instead determine that the defendant committed the offenses by a preponderance of the evidence. Probable cause basically means that a reasonable person would have cause to believe the defendant committed the offenses, while the “preponderance of the evidence” standard basically means it is more likely than not that the defendant committed the offenses. While the difference between these two standards seems to be minimal, it can actually be significant and is extremely important in situations like probation revocation where the tougher standard must be met.

For example, if a person who had committed several previous drug offenses were charged with a new drug offense, any reasonable judge could believe that the accused had committed the offense based on his history, so probable cause would probably exist. However, without more evidence, it would be impossible to say that it is “more likely than not” that the defendant is guilty of the crime charged. In other words, while you can certainly have a reason to believe someone could have committed a crime based on their history, you cannot say that it is more likely than not that they did in fact commit the crime without further evidence.

Thus, the trial judge in the case above erred by using the wrong standard of proof. Persons on probation in Tennessee cannot have their probation revoked merely because there is probable cause to believe they have committed a new offense, because the Tennessee statute requires that it be shown by a preponderance of the evidence that the defendant committed a crime before probation can be revoked. Attorneys in Tennessee who feel that the wrong standard was used to revoke their client’s probation can look to Williams for guidance.

Source: State v. Williams, 35 TAM 1-38, 10/30/09, Jackson, Glenn, 4 pages.

As discussed in our last blog, searches of persons, residences, or automobiles without probable cause or consent are presumed unlawful unless an exception is met. In a 2009 case styled State v. Turner, the Tennessee Supreme Court was asked to decide if a search of a parolee’s home without consent or probable cause was nevertheless a legal search due to the fact that the parolee had agreed to warrantless searches as a condition of her parole.

The defendant in Turner had been convicted of multiple felonies in Kentucky in 2002. She was paroled in 2005 and allowed to move to Tennessee. However, as a condition of her parole supervision being transferred to Tennessee, the defendant agreed to warrantless searches of her person, property, vehicle, or residence by any law enforcement officer at any time. Not surprisingly, the defendant’s home was later searched without reasonable suspicion and a handgun was found in her home, leading to the defendant’s arrest for being a felon in possession of a handgun. The defendant contended that the search was unreasonable under the Tennessee and the United States Constitutions. The Tennessee Supreme Court did not agree. Further details on the facts surrounding this case can be found in our previous blog article dealing with this case.

The Tennessee Supreme Court held that parolee’s have reduced privacy rights from those of ordinary citizens which in effect limit their expectations of privacy under the Fourth Amendment of the United States Constitution. Therefore, a warrantless search in the manner described above that is not based on reasonable suspicion that the subject of the search is involved in criminal activity will be permissible under the Fourth Amendment where two conditions are met. First, the parolee must have previously agreed to warrantless searches by law enforcement officials. Second, the searching officer must have prior knowledge of the parolee’s status as subject to such searches. Unfortunately, for the defendant, both of these requirements were met in her case.

Continue reading "Warrantless Searches: Exception for Parolees" »

In a case styled State v. Richards, the Tennessee Supreme Court recently dealt with the issue of warrantless searches. After receiving an anonymous tip that three individuals at a particular location were involved in drug trafficking, the officers traveled to that location, found four individuals gathered around a table and saw them engage in suspicious behavior. The fourth individual, who was apparently not named in the anonymous tip, was arrested only after a search of his person revealed narcotics in his possession. As a general rule, warrantless searches are presumed invalid unless the search meets one of several exceptions recognized by law. One such exception provides that a warrantless search is constitutionally permissible if the search is incident to a lawful arrest. For a search to be considered justifiable as incident to a lawful arrest, four criteria must be met:

1. The arresting officer must have probable cause to believe that the defendant had engaged or was [engaging in illegal activity]


2. The probable cause must attach to an offense for which a full custodial arrest is permitted


3. The arrest must be consummated either prior to or contemporaneously with the search


4. The search must be incident to, not the cause of, the arrest. State v. Richards, 286 S.W.3d 873, 878(Tenn. 2009).

Failure to meet any of these four conditions will mean that the search does not qualify for the exception and may be presumptively unlawful.

Continue reading "Warrantless Searches: Searches Incident to a Lawful Arrest" »

The United States Constitution gives a multitude of rights to those considered suspects in a criminal case. Unfortunately, many suspects are unaware of those rights. Prior to the landmark case of Miranda v. Arizona, which eventually made its way to the United States Supreme Court, law enforcement officials who intended to question suspects who were in custody for purposes of using the suspect’s answers at trial were not required to advise the suspect of his or her constitutional rights. In Miranda, however, the United States Supreme Court ruled that answers given by a suspect in police custody in response to police interrogation can only be introduced as evidence at trial if the suspect was informed (1) that he or she has the right to consult an attorney before and during questioning and (2) that he or she has a right against self-incrimination. The suspect must understand and waive these rights in order for statements made by the suspect in custody in response to interrogation to be admissible at trial.

In State v. Dailey, the Tennessee Supreme Court was recently faced with the issue of whether a confession given by a non-Mirandized suspect during police interrogation could be admissible at trial due to the fact that the suspect was later properly Mirandized and advised of his rights. In effect, the Tennessee Supreme Court was asked to decide if a failure to Mirandize could be cured by a proper Miranda warning given after the incriminating statements in question were made by the suspect. The Court properly ruled that no such cure is possible. The purpose of a Miranda warning is that the suspect knows his or her rights before making a potentially damaging admission or statement.

Continue reading "Tennessee Supreme Court Rules on Miranda Issue" »

One aspect of the criminal justice system that is discussed far too little is the importance of courtroom behavior, specifically as it pertains to being respectful to the judge and other court officials. The most obvious reason one should always treat the judge with respect is that the judge is in charge of the courtroom and the proceedings that take place in that courtroom, and a defendant will not garner any favor with the person in charge of it all by being rude or belligerent. Another reason to behave appropriately is that bad behavior in the courtroom that reaches the level of contempt can be punished with jail time or a fine, possibly both. Trials are often contentious and heated, such is the nature of the adversarial system. Understandably, defendants will at times be unhappy or frustrated with the proceedings or the judge in charge of the proceedings and will feel the need to express their displeasure. Acceptable means of expressing displeasure in the courtroom include frowning, grimacing, or even crying. Unacceptable means of expressing displeasure include, but are not limited to, shouting, cursing, and giving the judge “the finger.”'

An Illinois man learned this lesson the hard way recently when he felt inclined to salute the judge in such a fashion while in court on home-invasion charges. Apparently, the man was instructed to raise his right hand to be sworn in before the court and elected to only raise part of it. No doubt this maneuver impressed friends and family alike, but the judge was not amused. Upon seeing the gesture, the assistant state’s attorney asked that the man be found in contempt of court, and the judge complied with the request. He was given six months in jail for his unfortunate method of self-expression.

T.C.A. section 29-9-102 gives a judge the power to find someone in contempt in any of the following circumstances:

1. “The willful misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice;


2. The willful misbehavior of any of the officers of such courts, in their official transactions;


3. The willful disobedience or resistance of any officer of the such courts, party, juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or command of such courts;


4. Abuse of, or unlawful interference with, the process or proceedings of the court;


5. Willfully conversing with jurors in relation to the merits of the cause in the trial of which they are engaged, or otherwise tampering with them; or


6. Any other act or omission declared a contempt by law.”

Continue reading "Man Gives Judge the Middle Finger, Gets Six Months in Jail" »

In modern society, debates rage about which methods of discipline are appropriate for parents to use with their children. Most of the debate is focused on the ethics of spanking versus non-physical means of punishment and proponents of both sides differ as to what is acceptable and what amounts to going too far. In an effort to define with greater clarity what does indeed “go too far,” an Iraqi immigrant father living in Arizona recently ran his daughter over with the family car because he felt she was becoming too Americanized. The dad was apparently upset that the daughter was not living in comport with traditional Iraqi values and thus ran her over with the belief that she had caused the family too much dishonor to be allowed to live. He was later arrested at the Atlanta airport, but there is no word yet on what charges he will face. As of the writing of this article, the daughter remains hospitalized.

In Tennessee, the father would be looking at a litany of charges, most notably some sort of attempted murder charge (assuming the victim does not die from the injuries) depending on the circumstances surrounding the incident and the father’s mental state. Criminal attempt is an “inchoate offense,” which basically means that the person charged is accused of acting with the intent to commit the offense or attempting to commit the offense but did not actually follow through with the commission of the offense in such a manner that the offense attempted can be charged. For example, the father in this case allegedly attempted to kill his daughter by running over her with his vehicle and took steps to accomplish that goal. If the father’s plan would have been successful, he would have been guilty of murder. However, if the daughter does not die as a result of the attack, one of the necessary elements of a murder charge, a “killing,” is absent under the circumstances. Thus, the father can only be charged with attempted murder.

Continue reading "Dad Runs Daughter Over with Car as Punishment: Criminal Attempt" »

The trials of the defendants accused of killing college students Channon Christian and Christopher Newsom in Knoxville present the opportunity to examine a myriad of legal subjects and issues. Yesterday, October 28, 2009, marked the beginning of the sentencing hearing of defendant Lemaricus Davidson, who was found guilty on thirty-eight different counts including first degree murder of both Newsom and Christian. A sentencing hearing in a capital murder case is a necessary prerequisite to the jury’s decision between life in prison with the possibility of parole, life in prison without the possibility of parole, and the death penalty. Since this is a decision of paramount importance, Tennessee law basically allows the jury to hear all of the relevant information both sides want to present pertaining to appropriate punishment that does not otherwise prejudice either the prosecution or the defense. One important source of such information is the victim impact statement.

Victim impact statements are mostly known for being emotional and gut-wrenching in capital cases, because they almost always consist of someone grieving the loss of a loved one, but they also play material role in the proceedings beyond that of just informing the jury. Tennessee law defines a “victim” for purposes of giving such a statement as not only the person who suffers direct harm during the offense but also that person’s immediate family if the person harmed was a minor or homicide victim.

It is important to note, however, that the court is not merely allowing these statements to come into court because it feels sorry for the victim or the victims’ families (which would be completely understandable). Rather, the sentencing judge is compelled by T.C.A. section 40-38-202 to “solicit and consider” victim impact statements prior to sentencing an offender who has been found guilty of causing physical, emotional, or financial harm to a victim. In fact, T.C.A. section 40-38-204 requires that the department of correction notify the victims or their representatives that they have such a right where the defendant is convicted of a felony that involves one of the three types of aforementioned harm. Once a victim impact statement has been given, it becomes a part of the presentence report to be considered in sentencing and must also be considered as evidence in deciding whether mitigating or enhancement factors should apply to the defendant’s sentence.

Continue reading "Victim Impact Statements" »

For many Tennesseans, this time of year means football, barbecuing, and just generally taking advantage of the pleasant fall weather. Many outdoor activities common to the fall season involve the use of fire such as grilling, bonfires, and campfires. Although these activities are completely harmless for the most part when conducted in a responsible manner, failure to exercise due caution when starting or maintaining a fire can lead to criminal charges in Tennessee, even if the spreading of the fire was completely accidental.

T.C.A. section 39-14-304 provides that anyone who:

1. recklessly starts a fire on the land, building, structure or personal property of another; or


2. recklessly allows a fire built on their own property to escape and burn the property of another;or


3. recklessly starts a fire in violation of a burning ban as provided in T.C.A. section 39-14-306(b) is guilty of the misdemeanor of Reckless Burning.

T.C.A. section 39-14-306(b) prohibits the starting of an open-air fire in violation of a ban on such fires issued by the Commissioner of Agriculture pursuant to extreme fire hazard conditions in some area or all of the state. Violation of either of these sections is a Class A misdemeanor, punishable by eleven months and twenty-nine days in jail and a fine not to exceed $2,500.

Continue reading "Bonfires, Campfires, Can Lead to Criminal Charges" »

The 2007 murders of two college students in Knoxville, known to some as the Chipman Street Murders, have captured the attention of many Tennesseans. In addition, they have produced some of the most high-profile criminal trials in the East Tennessee area in quite some time. One of the most recent developments in this series of trials is that the judge has ruled that Lemaricus Davidson, one of the defendants accused of the murders, has until Monday to decide whether or not he wants to testify in his own defense. While Davidson seems to want to do so, it may be problematic for him because his taking the stand will allow the prosecution to question him about a Tennessee aggravated robbery charge that was levied against him in 2001. Ultimately, the decision is up to Davidson, as the United States Supreme Court has repeatedly held that a defendant’s right to testify is guaranteed by the United States Constitution.

The Sixth Amendment guarantees a defendant’s right to testify by giving the defendant the right to compulsory process to obtain witnesses in the defendant’s favor. Clearly this would give the defendant the right to call witnesses to the stand, and the defendant can be such a witness. Additionally, the Fourteenth Amendment’s guarantee of due process of law has been found to give the defendant the right to testify on his own behalf, as this right is an essential part of the adversarial system. The Fourteenth Amendment’s due process clause has been further construed to apply these rights to the states, so that the right to testify is guaranteed in both state and federal court.

Continue reading "Defendant in Chipman Street Murders Mulls Decision to Testify" »

The right of a person to be free from unreasonable searches and seizures of their home, business, property, or person is one that courts historically have been reluctant to infringe upon. Both the Fourth Amendment to the United States Constitution and Article One, Section Seven of the Constitution of the State of Tennessee guarantee citizens that their privacy will not be invaded in an unreasonable manner, meaning that law enforcement officials wishing to search a citizen’s person or property have historically been forced to obtain a search warrant in order to do so. After a recent Tennessee Supreme Court ruling, that may no longer be the case in certain circumstances.

The Tennessee Supreme Court handed down a ruling in a case styled State v. Turner on October 15th that could potentially alter the constitutional landscape in Tennessee forever. In the case at issue, the defendant was convicted of drug charges and endangerment in Kentucky in 2002. She was paroled in 2005 and moved to Tennessee. In April of 2007, an officer who knew the defendant pulled her over under the pretext of a traffic stop because he suspected she was selling drugs. Upon, pulling the defendant over, the officer found that she was not in possession of drugs, but had $975 in cash. Finding the cash fueled the officer’s suspicion that the defendant was selling drugs, so he searched her home without a warrant (because it is highly unlikely he would have been able to demonstrate probable cause to obtain a warrant) and found a loaded handgun. The defendant was thus charged with being a felon in possession of a handgun. At trial, the lower court judge said the search of her home was unlawful, meaning the evidence seized pursuant to the search would be suppressed, and the Court of Criminal Appeals agreed. The Tennessee Supreme Court took a different view, however, and overturned the ruling.

The Tennessee Supreme Court held that people who are on probation in Tennessee or parole, and are thus under judicial supervision anyway, should not expect to have privacy rights equal to those citizens who have not already been found guilty of criminal activity. The Court noted that this did not, however, mean that those citizens should be entitled to arbitrary or harassing searches. This is a departure from the standard prior to this case, however, as neither Constitutional provision referenced above protecting the rights of citizens to be free from unreasonable searches and seizures contains a similar limitation.

Continue reading "Tennessee Supreme Court Limits Privacy Rights for Those on Probation, Parole" »

Juries are critically important in the American legal system. In civil trials, they often decide if the plaintiff was harmed by the defendant, and how much harm was done. In criminal trials, they often decide not only if the defendant is guilty, but how much time the defendant will have to spend in prison. In more serious criminal trials, they literally decide whether or not someone guilty of a crime has forfeited the right to live. Because having an impartial jury is critical to the outcome of a defendant’s case, the Tennessee Rules of Criminal Procedure contains safeguards to ensure that the jury selected is fair and unbiased. One such safeguard is the right of both the prosecution and defense to exercise peremptory challenges during jury selection.

Tenn. R. Crim. P. Rule 24 allows parties to use peremptory challenges during jury selection to eliminate specific jurors during the jury selection process that either side feels should not be on the jury for one reason or another. The number of peremptory challenges allowed depends on the seriousness of the offense and ranges from three in misdemeanor cases to fifteen in death penalty cases. The Rule also provides for an additional peremptory challenge for each additional or alternate juror that is selected by the court. For example, the court may pick the twelve jurors and then add two jurors as alternates before hearing the case. Likewise, the court may empanel fourteen jurors, hear the case, and then randomly select who the two alternates will be before deliberations begin. Either way, each side would be awarded two additional peremptory challenges for use during the jury selection process.

Continue reading "Peremptory Challenges During a Jury Selection" »

When found guilty of a crime, whether by decision or plea, the next stage in the criminal process is sentencing. At this stage, defendants need skilled and experienced representation to ensure that their rehabilitation needs are considered and that a fair and just sentence is imposed. An unrepresented defendant or a defendant poorly represented risks excessive jail time and other penalties.

Alternative sentences authorized by law, include:

• Payment of a fine instead of prison time;


• Payment of restitution to victims instead of prison time;


• Suspended sentence upon a term of probation supervision that may include community service and/or restitution;


• Periodic confinement that may be served in a local jail or workhouse in conjunction with a term of probation;


• Work release;


• Community based alternatives in lieu of jail time (varies according to jurisdiction).

Continue reading "Alternative Sentencing" »

In the preceding article, I discussed the policy purposes underlying sentencing in Tennessee. This article provides more specific information on the considerations a court must apply when imposing penalties on a defendant—whether the penalty is incarceration, probation, community service or some other alternative sentencing arrangement.

When incarceration is considered by the judge as an option, the judge must consider whether confinement is necessary either:

1. to protect society by restraining the defendant who has a long criminal history,


2. to avoid depreciating the seriousness of the offense,


3. or to provide an effective deterrence to others likely to commit similar offenses.

The judge must also determine whether measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant.

The judge is required to apply uniformity in sentencing. Accordingly, the judge must ensure that the sentence is no greater than that deserved for the offense committed and that the sentence imposed is the least severe measure necessary to achieve the purposes for which a sentence has been imposed. Inequalities in sentences unrelated to the purposes of sentencing should be avoided.

Continue reading "Sentencing Considerations" »

By way of introduction, I discuss in this entry the General Assembly’s express purposes in enacting the Criminal Sentencing Reform Act.

The Reform Act is the end result of comprehensive penal and sentencing reform legislation enacted in 1989 to address inconsistencies found in the penal code. Addressing these inconsistencies, the General Assembly set standards for crime classification and sentencing methodology. Principles underlying this unifying approach were also codified (or re-codified) in TCA 40-35-102 to ensure fairness and justice in sentencing procedures. Five principles are discussed below:

First, every defendant is to be punished by a sentence he or she justly deserves in relation to the seriousness of the offense. As will be seen, violent crimes like homicide and aggravated assault generally carry more severe consequences than other crimes. Furthermore, the seriousness of theft and vandalism offenses depends on the value of the property stolen or destroyed.

Second, defendants are assured fair and consistent treatment by eliminating unjustified disparities in sentencing and by providing a fair sense of predictability. In pursuit of this goal, the legislature examined the crimes in Tennessee and ranked them according to the perceived seriousness of each defense. The General Assembly created 5 classes of felonies (A through E) with each class carrying a defined prison and fine range. For example, the prison range for a Class E felony is one to 6 years, whereas the prison range for a Class A felony is 15 to 60 years. The General Assembly also created 3 separate ranges for misdemeanors.

Third, the goal of punishment is to prevent crime and promote respect for the law. Accordingly, sentences should provide an effective deterrent to those who are likely to violate the law, restrain defendants with lengthy criminal histories, encourage rehabilitation through alternative sentencing and correctional programs, and encouraging restitution to victims where appropriate.

Continue reading "Criminal Sentencing in Tennessee: Purposes of the Reform Act" »

In a series of articles over the next couple of weeks, I will be discussing some of the various aspects of Tennessee’s Criminal Sentencing Reform Act of 1989 (“Reform Act”). My goal in discussing this topic is to encourage people who have been charged with a crime to seek out representation so as to give themselves the best chance for avoiding or reducing possible jail time.

An experienced Tennessee criminal defense attorney knows the substance of the charges levied against you, their consequences, and, if convicted, how to reduce or possibly avoid jail time altogether. An experienced criminal defense attorney can also seek out alternative sentencing in lieu of jail time, which can prevent criminal charges from going on your permanent criminal history.

Continue reading "Introduction to Criminal Sentencing in Tennessee" »

The Tennessee Supreme Court recently had the opportunity to revisit the informer’s privilege. In particular, the court addressed the circumstances under which the identity of a confidential informant must be disclosed to a criminal defendant prior to trial.

What is the informer’s privilege? It is the government’s privilege to not reveal the identity of an informer. The justification for the privilege is twofold: 1) to protect informants from reprisals and 2) to maintain the informant’s confidential status. The privilege does not apply where the informer is also a government witness during the criminal trial.

The informer’s privilege is not absolute and must be waived when the defendant demonstrates by a preponderance of the evidence that the informer’s identity is crucial to his or her defense. Examples of mandatory disclosure provided by the Tennessee Supreme Court in the case State v. Ostein included evidence that the informant 1) participated in the crime, 2) witnessed the crime, or 3) had information favorable to the defendant.

Continue reading "Informer's Privilege" »

In addition to the cost of bail, loss of work, and the possibility of fines, retaining an experienced criminal defense attorney can seem like too much. But is it too high a price if hiring an attorney gives you the best chance for an acquittal or reduced charges? If freedom and reputation is priceless, I would think not.

Here’s a list of 5 reasons why you shouldn’t represent yourself “pro se”.

1. Complex Court Procedures - When representing yourself, you are responsible for knowing and abiding by the court's practices and procedures in the same way as an experienced practicing attorney. These procedures apply uniformly and are designed to ensure a fair and efficient judicial process. Accordingly, these practices and procedures are typically inflexible and unforgiving.


2. Complex Law - Criminal laws are not straightforward. Often the language is ambiguous and left to the courts to interpret. Without adequate knowledge of judicial interpretations, you will likely find yourself up against a mountain of confusion when what you need is clarity.


3. Too Close to the Situation - Being accused of a crime can wreak havoc on your emotions and drain your energy. When prosecutors and law enforcement have worked countless hours building a case, it can seem as if the whole world is against you. Emotions then stand in the way of reason, which in turn leads to mistakes, miscalculations and hasty decision-making.


4. Prosecutorial Advantage - In many instances, by the time you’ve been arrested or indicted, prosecutors and law enforcement have already spent countless hours and resources working on a case against you. Thus, there’s no time to play catch-up once charges are pressed.


5. Knowledge of Defense Strategy - An experienced criminal defense attorney in Tennessee knows what you can’t learn in a book. It’s a feel for the “game” of what defense strategy works and what strategy does not, what evidence is good evidence and what is not, where evidence is and where evidence is not.

Continue reading "5 Reasons Why You Shouldn’t Represent Yourself When Accused of a Crime in Tennessee" »

When you have been accused of a crime, you are facing the horrible possibility of going to jail, fines and a criminal history that may follow you for the rest of your life. Finding a competent criminal defense attorney is critical.

A knowledgeable criminal defense attorney will represent those accused of crimes to the best of his or her ability while efficiently utilizing all of the appropriate resources and tactics available. Competent criminal defense attorneys can also negotiate with prosecutors to reduce charges and sentences.

In fact, a competent criminal defense attorney is much more than a skilled trial attorney. An experienced criminal defense attorney in Tennessee knows the criminal process from top to bottom and knows what it takes to help you reach the best possible outcome under the circumstances.

Additionally, a good criminal defense attorney will:

• Objectively analyze the client’s situation and discuss with the client all of the available legal options and their consequences.


• Develop sentencing programs that specifically meet the client’s needs so as to avoid future entanglements with law enforcement.

Continue reading "Finding the Right Criminal Defense Attorney in East Tennessee" »

Under Article III of the U.S. Constitution as applied to the states through the 14th Amendment, all persons have a right to a jury when accused of a crime. The Supreme Court has decided, however, that the right does not extend to petty offenses. Under this judicial interpretation, states are free to determine which offenses are petty and which are not.

In Tennessee, petty offenses (or “small” offenses), are defined as cases where the potential sentence is less than $50 and carries no jail time. This can include ordinance and traffic violations in TN.

Defendants may also waive their right to a jury trial. In Tennessee, only Circuit Courts have jurisdiction to try cases before a jury. Further, only a Circuit Court can convict a person of a felony. If charged with a misdemeanor, the defendant is typically convicted and sentenced by a judge in General Session Court; however, the defendant can specifically request a jury trial and have his or her case heard in Circuit Court.

Continue reading "Right to a Jury in Tennessee" »

Individuals who have been accused of crimes will sometimes resign themselves to defeat. They feel that the evidence is too strong or that they will buckle under the pressure. However, all accused persons in the United States and Tennessee are entitled to what is called the presumption of innocence. Coupled with the fact that the prosecutor has the burden to prove the defendant guilty beyond a reasonable doubt, the state often has a tough row to hoe when trying to put you in jail.

In Tennessee, if you have been accused of a crime, you are legally presumed to be innocent until a judge or jury has convicted you or if you plead guilty to the crime. Thus, the state has the initial burden to come forth with convincing evidence of your guilt. For example, in a Tennessee drug possession case, the state must prove beyond a reasonable doubt all elements of the charge. Under T.C.A. § 39-17-418, it is an offense for a person to knowingly possess marijuana. Under this law, not only must the state prove that you had marijuana in your possession, it must also prove that you did so with knowledge that you possessed the controlled substance. If the state fails to prove either element beyond a reasonable doubt, you go free.

But what does it actually mean to prove something “beyond a reasonable doubt”? By way of comparison, the burden of proof in a civil matter is “preponderance of the evidence.” This means that the plaintiff has to prove that, more likely than not (i.e., above 50 percent), the defendant was negligent. In contrast to civil matters, the burden of proof in a criminal case is much higher.

Continue reading "Presumption of Innocence and the Standard of Proof in Criminal Trials" »

When charged with a violent crime, including homicide or assault in Tennessee, the defendant may enter a plea of not guilty along with a plea of self-defense. If proven, self-defense is a complete bar to criminal liability.

When people are threatened by the use of force or threat of force, creating in their mind a reasonable belief of imminent fear of death or serious bodily injury, they are legally justified in threatening or using force to defend themselves—even to the extent of killing the initial aggressor.

If while in his or her home or business, a defendant is presumed to have exercised lawful self-defense if he or she uses force or threat of force against someone who is believed to have unlawfully and forcefully entered the defendant’s home.

However, there are several caveats to self-defense that must be thoroughly understood by the client and the client’s criminal defense attorney before raising self-defense as a justification for an otherwise unlawful assault.

Continue reading "Defenses to TN Crimes: Self-Defense" »

Under Tennessee’s DUI law, it is unlawful for any person to drive any automobile or other motor driven vehicle on any public roads, alleys, or parking lots frequented by the public with a blood alcohol level of .08% or more. If you have been charged with this crime in Tennessee, it is essential that you get an experienced Knoxville DUI attorney to represent you.

The state’s DUI case is only as good as the evidence it has against you. In two parts, I will discuss two evidentiary issues the defendant in State v. Anderson brought on appeal from his DUI conviction in Tennessee.

In 2005, the Defendant, Michael R. Anderson, crashed a red Camaro into a tree. An officer arrived on the scene and after smelling alcohol, asked the defendant if he would volunteer to take a blood test at a local hospital. The defendant consented. The blood test revealed that defendant had a high concentration of alcohol in his system.

At trial, expert testimony and a blood test revealed a blood alcohol level of .21, which, according to the expert, was equivalent to 14 drinks consumed by a two-hundred pound man. And the blood test was taken approximately 2 hours after the accident! On this evidence, Mr. Anderson was convicted of DUI and sentenced to almost a year in jail.

On appeal, the defendant challenged the expert’s testimony upon proof that the expert had discussed aspects of the case with an officer/witness and a prosecutor during a court recess. Based on this fact, the defendant asserted that the state violated the rule of sequestration, which basically orders all persons not to discuss live trial testimony or exhibits with witnesses who have been excluded from hearing such live testimony.

Although the expert had been specifically excluded by the court, the court of appeals found that the expert was essential to the case, which according to a rule of evidence, means that the expert should not have been excluded from discussing live testimony. If, however, the witness had not been an expert or otherwise deemed non-essential, the case may have resulted in an acquittal.

Like many other procedural and evidentiary rules, witness sequestration was developed to protect the accused from bias that may arise in a witness when he or she observes live testimony or evidence in a judicial proceeding. When you have been charged with a crime, you will want an attorney who has the knowledge and the experience to protect your right to a fair trial. Call 866-853-2888 today to speak with the skilled Tennessee DUI defense attorneys at Baker Associates.

On May 14, 2009, before Judge Baumgartner, defense counsel for Vanessa Colemen in the now-infamous carjack slaying case argued that Tennessee homicide charges against his client should be dropped because Ms. Coleman testified before a grand jury on issues related to the charges now levied against her.

According to Tennessee Criminal Law and Rules of Criminal Procedure, if a witness is called before a grand jury and the witness decides not to incriminate herself, the district attorney may compel the witness to answer by granting the witness immunity from prosecution.

The problem with Coleman’s case, however, is that while her recently retired defense attorney applied for the immunity, Ms. Coleman never followed through with the application. Rather, she voluntarily testified before the district attorney ever considered her as a suspect.

Her defense attorney now seems to argue that immunity is automatic even though immunity typically applies when the defendant is under indictment. Even if counsel wins on this issue, there’s still another problem. The case is a federal proceeding, and there is no equivalent rule in a federal case granting immunity to those who testify before a grand jury.

If you have been charged with a crime in Tennessee, you will want an experienced Sevierville criminal defense attorney who can foresee such problems as described above and who will aggressively defend your rights. Call 866-853-2888 today for a case evaluation.

The General Assembly passed a proposal—SJR 127—to amend Article 1 of the Tennessee Constitution. If passed, the amendment could open the door for changes to Tennessee criminal abortion laws. The proposal reads,
“Nothing in this Constitution secures or protects a right to abortion, except in cases involving rape or incest or in cases where the procedure is medically necessary to save the life of the pregnant woman. Nothing in this Constitution requires the funding of an abortion. No person shall perform a partial-birth abortion.”

How might this change existing abortion Tennessee criminal law? By reading the amendment, one might think that it would allow the General Assembly to pass a blanket law banning abortion. Since states are also bound by the Federal Constitution and Supreme Court decisions interpreting the Constitution (particularly Roe v. Wade and Planned Parenthood v. Casey), it is unlikely that the General Assembly would attempt to pass such a bill unless it wanted to launch a full-scale assault on settled federal law. (Given the conservative bent of the Supreme Court, this is not outside the realm of possibility.)

What it might change is the Tennessee Supreme Court decision that struck down a statutory requirement that an abortion must take place in a hospital when it is performed after the first trimester. In coming to this decision, the Supreme Court held that Article 1 of the Tennessee Constitution guaranteed a pregnant woman a right of privacy, which includes the right to have an abortion. Requiring a woman to have her abortion in a hospital, the Court held, violates this right. If the Constitution is changed, however, the reasoning of this case would no longer apply, and law enforcement would be free to enforce the hospital requirement.

On the Internet, as is often the case, there is much misinformation regarding the Amendment. Without publishing the text of the Amendment, Planned Parenthood stated, [i]t is a dangerous, extreme, and deceptive measure [that] makes no exception for rape, incest or health of the mother.” This is absolutely false. When it was initially proposed, the proposal stated that the “people retain the right [to enact legislation under] circumstances of pregnancy regarding rape, incest or health of the mother.” While this could be read as a clandestine effort to open a door to remove the infamous health exception, the revised language shuts this door completely when it states, “except in cases…where the procedure is medically necessary to save the life of the pregnant woman.”

The abortion proposal will be up for a second vote in 2011 when it will have to pass the House by a two-thirds majority. Only then can it move forward to a gubernatorial ballot. While the amendment seems a long way off, the culture war is just heating up. As such, there will be much misleading information on what is and what is not an abortion crime in Tennessee. If you have been charged with such a crime, you will want a criminal defense attorney with the knowledge necessary to help you understand your case. Call the experienced Knoxville criminal defense attorneys skilled in abortion crimes at Baker Associates today so that we can help you mount the best possible defense.

The choice of how to plead to criminal charges in Tennessee can be a difficult and confusing matter. It can also be very stressful given the consequences that flow from entering a plea. The following is a brief description of the various pleas available in Tennessee.

Not Guilty Plea - To plead “not guilty” is a Constitutional right. In fact, where the defendant fails to appear, the court must enter a plea of not guilty. By pleading not guilty, the defendant denies every material allegation of the prosecution’s complaint. A defendant who pleads guilty may rely on defenses, including affirmative defenses that admit certain facts while asserting other facts that, if proven, relieve the defendant from liability.

Guilty Plea - A guilty plea is the defendant’s admission in open court that he has committed the offense for which he has been charged. Once the guilty plea is entered, the court must verify that the plea was voluntary. If it is found that the plea was not voluntary, the trial court judge will reject the plea.

Plea of Nolo Contendere (no contest) - The defendant also has the option to plead no contest but must do so with the consent of the court. While the no contest plea has the same legal effect as a guilty plea, it differs from a not guilty plea in one major respect: The no contest plea cannot be used against the defendant in a criminal or civil action based upon the same facts since the plea is not an admission of guilt.

Best Interest Plea - A defendant sometimes enters this kind of plea when he or she wishes to accept a plea bargain and plead guilty while maintaining that he or she is innocent. This plea has given the courts some trouble because a guilty plea requires a factual finding that the plea was entered into voluntarily. The Supreme Court, however, has found the plea valid where 1) the defendant is represented by competent counsel, and 2) there is a record that strongly evidences guilt. Tennessee courts are not required to accept such a plea.

Conditional Guilty Plea - With the consent of the court, the defendant charged with a misdemeanor may enter a conditional guilty plea. When such is established, the court enters the plea but does not accept it until some condition is met. For example, the guilty plea may be conditioned upon the defendant’s successful completion of probation or community service. In this way, the defendant is still able to be punished without having his or her record tainted with a criminal conviction.

For additional information on pleas for a criminal case or if you’ve been charged with a crime in Tennessee, contact Baker Associates. Our knowledgeable and experienced attorneys can help you make the best decision for your specific case. Call 866-853-2888 today to speak with a skilled Sevierville criminal defense attorney willing to fight for you.

On January 14, 2009, the Tennessee Criminal Court of Appeals had an opportunity to revisit the law on the voluntariness of a guilty plea. In Shockley v. State of Tennessee, a Davidson county grand jury indicted the petitioner/defendant on four counts of rape of a child and nine counts of aggravated sexual battery. Under a plea agreement, the defendant pled guilty to only four counts of aggravated sexual battery in Tennessee. The trial court then imposed an effective sentence of sixteen years in prison.

After sentencing, the defendant petitioned for post-conviction relief claiming that his guilty plea was not knowingly and voluntarily entered because he had taken Zoloft, Xanax, and Ambien prior to the plea hearing. The Court, however, rejected the defendant’s petition because there was no evidence other than the defendant’s testimony that he had taken the prescription drugs. Moreover, the record of the sentencing hearing showed that defendant represented on several occasions that he understood the nature and consequences of his guilty plea.

Post-conviction relief in Tennessee describes the many laws that can help you after your conviction. The Tennessee code states that post-conviction “relief…shall be granted when the conviction or sentence is void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States.”

Pursuant to this Tennessee criminal law, a person who pleads guilty must do so voluntarily and with knowledge of the consequences that are involved with such a plea. In reviewing the voluntariness of a guilty plea a court must look at the totality of the circumstances. The circumstances relevant to a guilty plea include:

• the relative intelligence of the defendant;
• the degree of his familiarity with criminal proceedings;
• whether he or she was represented by competent counsel and had the opportunity to confer with counsel about the options available to him;
• the extent of advice from counsel and the court concerning the charges against him or her; and
• the reasons for his or her decision to plead guilty, including a desire to avoid a greater penalty that might result from a jury trial.

Although the court ruled otherwise, it seemed as though the defendant was not fully apprised of the full breadth of the consequences of his plea. At Baker Associates, our skilled Gatlinburg criminal defense attorneys work hard to help you understand the issues involved in your case, including the consequences of a plea. If you have been charged with a crime, or convicted of a crime and seeking post-conviction relief, don’t hesitate to call 866-853-2888 for a complete case evaluation.

When clients come into our office at Baker Associates, there is often some confusion about the criminal process and criminal law in Tennessee. This blog entry hopes to clear up some of that confusion.

Criminal prosecution develops in a series of stages, which begins with an arrest and may or may not end with a jury verdict. In fact, the majority of criminal cases terminate when a criminal defendant accepts a plea bargain offered by the state prosecutor. In a plea bargain, the defendant pleads guilty to the charged offenses or to lesser offenses prior to trial in exchange for a more lenient sentence or for dismissal of related charges.

The stages of a criminal case along with a brief (and oversimplified) description are provided below:
• Arrest - This stage begins typically with an arrest by a police officer. After the arrest, the officer then books the suspect and places him or her in custody.

• Bail - If in custody, the suspect is granted bail and may pay the bail amount in exchange for release.

• Arraignment - At this stage, the suspect makes his or her first court appearance. At the arraignment hearing, the judge reads the charges filed against the defendant in the complaint, and the defendant chooses to plead "guilty," "not guilty" or "no contest" to those charges.

• Preliminary hearing or grand jury proceedings - At this stage, the government brings criminal charges by either a “bill of information” or by a grand jury indictment to determine whether there is “probable cause” for the case to proceed.

• Pre-trial motions - Motions hearings may be bought by both the prosecution and the defense to resolve issues related to the admissibility of evidence and testimony prior to trial.

• Trial - At trial, the prosecution presents his or her case first and bears the initial burden of proof. The defense then presents its proof to rebut the prosecution’s case. After closing arguments and the jury instructions, a jury makes the final determination of guilt or innocence.

• Sentencing - If found guilty, the court determines the appropriate punishment.

If you have been charged with a crime, you will want a skilled and experienced Pigeon Forge criminal defense attorney to defend your rights at every stage of the criminal process. Call Baker Associates today for a thorough consultation.

Most people are familiar with the concept of a search warrant, but most people are not familiar with how and why a search warrant is issued in regards to criminal offenses in Tennessee.

A search warrant is a written order, issued by a magistrate, directing a law enforcement officer to search for personal property and bring it before the magistrate for analysis in criminal matters.

There are four grounds on which property can be searched and seized: (1) where the property was stolen; (2) where the property was used as the means of committing a felony; (3) where the property is being possessed with the intent to commit a public offense; and (4) any other ground provided by law. This fourth category is a catchall to provide law enforcement wide latitude in obtaining evidence of criminal activity.

A search warrant can only be issued based upon probable cause, meaning a reasonable belief that a person has committed, or will commit, a crime whether it is an issue of assault, white collar offense, or drug offense. The search warrant must be supported by an affidavit, a sworn statement of fact, naming and describing the person and particular property and place that is to be searched.

The magistrate, before issuing the search warrant, must examine all testimony and evidence to establish grounds for issuing the warrant. If the facts and evidence do not establish probable cause, the warrant is not to be issued.

Once the warrant is issued, the law enforcement officer charged with its execution is to immediately search the property for the particular evidence sought and bring it before the magistrate in accordance with the specifications of the warrant. In Tennessee, all search warrants must be executed and returned to the issuing magistrate within five days of issuance, otherwise the warrant will be void.

If any of the procedures for a search warrant are improperly executed, it could result in an illegal search and seizure under the Fourth Amendment to the Constitution. If this is the case, all evidence obtained during that particular search may be inadmissible at trial.

If you have any questions regarding search warrants in Tennessee or if you or someone you know has been accused of a crime, contact the skilled Sevierville criminal defense lawyers at Baker Associates. Call 866-853-2888 for a free consultation.

Forensic science plays an integral role in the criminal justice system. Well-trained forensic scientists and medical examiners can be the determining factor in the ability of evidence to adequately represent the facts of a case. Forensic science can be used in almost any criminal case; however, investigations of homicide, rape, and arson are those that benefit the most from forensic science.

Everyone is familiar with the television show “C.S.I.” While this show involves a lot of idealism, and often times skews the reality of forensic science, at its core “C.S.I.” represents the importance that quality forensic science can play in a complicated case. In complicated cases, and even in relatively simple ones, the most minute of details can become paramount to a successful prosecution or defense. Forensic scientists are trained to analyze crime scenes, evidence, and personal testimony to create a visualization of how a crime occurred. An understanding of the circumstances surrounding a crime is pivotal to ensuring that the correct charges are brought against the correct person. The mishandling or misinterpretation of evidence can be devastating to the goals of the criminal justice system and can result in the wrongful conviction of innocent persons and the failure to convict the true perpetrator, which is why you need a skilled criminal defense lawyer in Knoxville if you’ve been convicted of a criminal offense. Conversely, correctly applied forensic science ensures that justice is served and innocent persons remain free.

One person who is often overlooked in the forensic science field is the medical examiner. In homicide cases, medical examiners employ forensic science to determine the cause of death. Sometimes, the determinations of the medical examiner can show that a victim died of natural causes or by something other than a defendant’s hand. This evidence can literally be a lifesaver to a person facing a homicide charge. An example like this makes it easy to see the importance of forensic science.

Being charged with a criminal offense such as the ones mentioned above has serious consequences and can affect the rest of your life. With the help of an experienced criminal defense lawyer in Tennessee, a thorough investigation can be done to determine if forensic evidence was conducted properly or if any mishandling or misinterpretation of evidence was conducted. Call Baker and Associates today for a case evaluation and rest assured that every possible effort will be made to defend and protect your legal rights.

“Miranda Rights” generally refer to a couple of rights subsumed under the general right against self-incrimination. These rights were enforced and highlighted by the United States Supreme Court’s 1966 decision in Miranda v. Arizona. While most anyone can recite the famous lines of a Miranda Warning, perhaps less well known are the actual rights protected by this warning. The two overarching rights are: (1) the right to remain silent, and (2) the right to an attorney.

The Right to Remain Silent: This right is guaranteed by the Fifth Amendment. Persons who are being interrogated by the authorities have a right against self-incrimination. While often known as “pleading the Fifth” in the courtroom, this right also extends to questioning and interrogation by police immediately after arrest. By invoking this right, a defendant may refuse to answer any questions that may result in the proffering of evidence that could be used against them. This right does not, however, allow a defendant to refuse to provide basic information such as their name.

The Right to An Attorney: This right is also guaranteed by the Fifth Amendment. Persons who are placed under arrest have the right to consult with an attorney, and to have their attorney present during all questioning. This is formally referred to as the “right to counsel.” This right seeks to ensure that a person who waives their right to remain silent can still be advised as to the incriminating nature of any testimony they provide thereafter. This right is seen as so fundamental that the United States Supreme Court requires that the government must provide legal counsel to persons who cannot afford it.

Perhaps the most important thing to remember about Miranda Rights is that they can be waived. It is up to a defendant and their top criminal defense attorney in Knoxville to ensure that they conduct themselves in a manner that is consistent with exercising their rights. Once the right against self-incrimination has been waived, any and all evidence extracted by the authorities after that point will be admissible at trial. This is why it is absolutely imperative that criminal defendants be apprised of their Miranda Rights as soon as possible and understand the consequences of waiving those rights.

Whether you are arrested or charged with a white collar crime, domestic violence or DUI, you have rights and the opportunity to have a skilled Tennessee criminal defense attorney on your side. The law team at Baker Associates can evaluate your case to see if your Miranda Rights have been compromised. Call us today at 866-853-2888 for a consultation.

Tennessee criminal defense lawyers assist clients in East Tennessee charged with all types of charges, from traffic violations to complicated felonies like homicide. No two cases are the same, and each case has a unique set of facts associated with it. Depending on the circumstances, the court may defer proceedings against a qualified defendant. This is sometimes referred to as a "deferred plea" in Tennessee.

According to Tennessee law, the court may defer further proceedings against a qualified defendant and place the defendant on probation upon such reasonable conditions as it may require without entering a judgment of guilty and with the consent of the qualified defendant. The deferral shall be for a period of time not less than the period of the maximum sentence for the misdemeanor with which the person is charged, or not more than the period of the maximum sentence of the felony with which the person is charged. Tenn. Code Ann. § 40-35-313 (a)(1)(A) (2007)

Under Tennessee law, qualified defendant means a defendant who:

1) Is found guilty of or pleads guilty or nolo contendere to the offense for which deferral of further proceedings is sought;

2) Is not seeking deferral of further proceedings for a sexual offense, a violation of § 71-6-117 or § 71-6-119, or a Class A or Class B felony; and

3) Has not previously been convicted of a felony or a Class A misdemeanor.

Sexual offense under the judicial deferral statute means conduct that constitutes:

• Aggravated prostitution
• Aggravated rape
• Aggravated sexual battery
• Aggravated sexual exploitation of a minor
• Especially aggravated sexual exploitation of a minor
• Rape
• Rape of a child
• Sexual battery by an authority figure
• Sexual exploitation of a minor
• Statutory rape by an authority figure
• Attempt, solicitation, or conspiracy, to commit any of the above offenses

Upon violation of a condition of the probation, the court may enter an adjudication of guilt. If, during the period of probation, the person does not violate any of the conditions of the probation, then upon expiration of the period, the court shall discharge the person and dismiss the proceedings against the person. Discharge and dismissal under the judicial deferral statute is without court adjudication of guilt. § 40-35-313 (2) (2007)

If you would like more information on deferred pleas, and whether it might be applicable in your case, contact a Tennessee criminal defense attorney. Our criminal defense lawyers help clients in Knoxville, Sevierville, Morristown, Madisonville, Johnson City, Newport, Maryville, Alcoa, Gatlinburg, Loudon, and Newport.

Many people question whether they should cooperate with the police. If the police ask you questions or ask you to do something, you usually have a legal right not to answer them, to walk away, or to refuse the request. If you are ordered to do something, you should obey that order. But, having the police order you is an important part of ensuring your protections under the constitution. If you are not sure whether they are requesting or ordering, you should obey them. Do not put yourself in danger by attempting to walk away from or disobey a police officer. And, if you feel like they are commanding you, then you protect your rights by obeying them.

If you feel the police are asking you to do something in a friendly, casual, non-threatening tone, and it is not clear whether they are commanding you or simply requesting something during a conversation, you may ask them whether they are ordering you or simply asking. If it is an order, you must obey immediately. If it is simply a request, you have the option of not granting the request. This will protect your rights. Remember to always use wise judgment. Obey the police and do not resist arrest. Acting out is dangerous and will only hurt your case. If you have been charged with a crime in the East Tennessee area, contact a criminal defense attorney.

Tennessee criminal defense lawyers help clients charged with traffic violations, misdemeanors, and complicated felonies. All cases are different so different defenses and strategies are employed. Depending on the circumstances, the defendant in a criminal case will often attempt to divert prosecution in his or her case.

According to Tennessee law, a qualified defendant may agree with the state to suspend prosecution for a specific period of time. It is important to stress that the state and defendant must agree to suspend prosecution, and that pretrial diversion will not happen for all qualified defendants. The agreement is done by what’s known as a memorandum of understanding. The prosecution can be suspended up to a maximum of two years once the memorandum of understanding is filed. The defendant is responsible for paying certain fees once an agreement is made. The defendant must also follow certain conditions during the period when the prosecution is suspended. Once these conditions are completed, the charges are dropped within 90 days after the expiration of the period of suspension.

Defendants must be qualified by meeting each of the following requirements to be eligible for pretrial diversion:

• The defendant must not have previously been granted pretrial diversion or judicial diversion; and

• The defendant must not have a prior misdemeanor conviction for which a sentence of confinement is served or a prior felony conviction within a five-year period after completing the sentence or probationary program for the prior conviction; and

• The offense for which the prosecution is being suspended must not be a Class A or Class B felony; and

• The offense for which the prosecution is being suspended must not be a DUI, vehicular assault, or sexual offense. Sexual offense includes the following:

1. Aggravated prostitution;
2. Aggravated rape;
3. Aggravated sexual battery;
4. Aggravated sexual exploitation of a minor;
5. Attempt to commit any of these offenses;
6. Conspiracy to commit any of these offenses;
7. Especially aggravated sexual exploitation of a minor;
8. Rape;
9. Rape of a child;
10. Sexual battery by an authority figure;
11. Solicitation to commit any of these offenses.

• The offense for which prosecution is being suspended must not be any of the following Class C felonies:

1. Adulteration of foods, liquids or pharmaceuticals;
2. Aggravated assault resulting in serious bodily injury;
3. Aggravated burglary;
4. Bribery of a public servant;
5. Bribing a juror;
6. Bribing a witness;
7. Buying and selling in regard to public offices;
8. Introduction of weapons, explosives, intoxicants or drugs into a state, county, or municipal institution where prisoners are quartered;
9. Robbery;
10. Voluntary manslaughter;
11. Vehicular homicide (effective January 1, 2008). Tenn. Code Ann. § 40-15-105 (2007).

If you would like more information, contact a Tennessee criminal defense attorney. Our lawyers help clients in the East Tennessee area including Knoxville, Sevierville, Gatlinburg, Loudon, Newport, Morristown, Johnson City, Chattanooga, and Maryville.

The grand jury is a group of citizens usually selected from the same large group of eligible jurors. The grand jury has several functions. Its primary function is to serve as a check on prosecutorial abuse by screening cases that do not have enough merit to justify continued processing in the criminal justice system. The test is whether there is probable cause to believe that (1) a crime was committed and (2) the defendant committed it.

If the grand jury finds that probable cause is present, a true bill or indictment is issued. If probable cause is not found, a no true bill is returned and the case is dismissed, but often it can be resubmitted to the same or a different grand jury if the prosecution wants to try again for the indictment. Ordinarily, the prosecuting attorney serves as counsel to the grand jury; facilitates the issuance of subpoenas for witnesses, documents, and other physical evidence; prepares cases for it to consider; and may even recommend whether to issue or not issue an indictment.

Another important function of the grand jury is to investigate possible violations of the criminal law. A member of the grand jury, the prosecutor, or a private citizen may suggest that the grand jury investigate a person, place, or business for possible criminal activity. If the grand jury chooses to launch this probe, it may use its power to issue subpoenas to compel people to testify and bring records and other things with them to the grand jury. If the grand jury finds that crimes are being committed, it can issue a presentment, which is a formal allegation that a named person or business has committed a crime. The presentment serves exactly the same function as an indictment. Criminal Procedure: The Post-Investigative Process, Cases And Materials 11-12 (Neil P. Cohen & Donald J. Hall, 2nd ed., Lexis 2000).

If you are charged with a crime in the East Tennessee area, contact a criminal defense lawyer. A criminal defense lawyer will help explain the criminal process applicable in your case.

Tennessee criminal defense attorneys assist clients with a variety of charges throughout East Tennessee. Our lawyers handle criminal cases such as homicide, theft, drug offenses, assault, juvenile cases, DUI’s, and traffic citations in the Johnson City, Newport, Sevierville, Knoxville, Maryville, and Morristown areas. Whenever you are charged with a crime, you must make many important decisions during the criminal process with the guidance of your attorney. Many clients question the difference between certain pleas.

Under Tennessee law, A defendant may plead not guilty, guilty, or nolo contendere. The court shall enter a plea of not guilty if a defendant refuses to plead or if a defendant corporation, limited liability company, or limited liability partnership fails to appear. Tenn. R. Crim. P. RULE 11 (2007)

By pleading guilty, the defendant consents to a judgment of conviction entered without trial. The accused thereby relinquishes the right to be tried by a jury and at that trial the right to confront and cross-examine adverse witnesses, and the right against compelled self-incrimination. Consequently, before accepting a plea of guilty and a waiver of these rights, the court must determine that the accused is acting voluntarily and understands the charges. The plea itself is an admission of guilt and the accepted plea is essentially a criminal conviction.

By pleading not guilty, the defendant requires the government to prove its case, thereby placing in issue each material element specified in the indictment. This plea also preserves many constitutional rights, including the right to jury trial, the privilege against self-incrimination, and the right to confront accusers.

Similar to a plea of guilty, the plea of nolo contendere involves a waiver of the right to a trial of any kind. A nolo plea is a formal declaration that the accused will not contest the charge and it has the same legal effect as a guilty plea in terms of its finality. Therefore, judgement following entry of a nolo contendere plea is a criminal conviction and usually may be admitted as in other proceedings where the fact of conviction has legal significance.

In contrast to the plea of guilty, however, the legal consequences of a nolo plea are different in one critical respect. The nolo plea usually may not be used in a later civil case as proof of the fact that the defendant committed the offense. That is, the plea of nolo may not be used as direct evidence of liability in a civil suit. This feature explains why a person facing both civil and criminal proceedings might prefer to plead nolo contendere to resolve the criminal matter without compromising the subsequent civil proceeding. Criminal Procedure: The Post-Investigative Process, Cases And Materials 11-12 (Neil P. Cohen & Donald J. Hall, 2nd ed., Lexis 2000).

The accused does not have an absolute right to plead nolo contendere. Your criminal defense attorney will further discuss the implications of how you should plea in your particular case.

Tennessee criminal defense lawyers understand that the criminal procedures may be confusing. Tennessee criminal defense attorneys have helped many clients in different areas including homicide, drugs, DUI, assault, juvenile cases, and traffic citations. Whenever you are charged with a crime, you always want to be informed about the different stages of the criminal process.

A criminal accused is usually entitled to a preliminary hearing. A preliminary hearing is an adversary proceeding presided over by a judge without a jury. A criminal defense attorney and a prosecutor are present at the preliminary hearing. The usual purpose of this hearing is to determine whether there is probable cause to believe that (1) a crime was committed and (2) the accused committed it. This probable cause determination is designed to ensure that citizens do not have to endure the rigors and expenses of a criminal trial when there is not enough proof to satisfy the minimal probable cause standard.

Whether a particular defendant is entitled to a preliminary hearing may depend on the particular procedural posture of the case. If probable cause is found at the preliminary hearing, the case is bound over or transferred to a grand jury. If probable cause is not found, the case is dismissed but ordinarily can be brought again before the same or a different judge or can sometimes be presented to the grand jury anyway. If the grand jury issues an indictment, the case will be scheduled for trial.

Because the probable cause standard is quite low, only rarely is probable cause not found. Accordingly, often defense counsel will not make a serious effort to use the preliminary hearing to have all or some of the charges dismissed. Instead, the defense lawyer will sometimes focus on discovering information about the prosecution’s case. Although the defense has the option of calling witnesses, usually the defense will call no witnesses and instead will spend its time cross-examining prosecution witnesses to discover their knowledge of the case. This enables the defense to learn something about the prosecution’s case without disclosing much, if anything, about the defense’s strategy and proof. Criminal Procedure: The Post-Investigative Process, Cases And Materials 11-12 (Neil P. Cohen & Donald J. Hall, 2nd ed., Lexis 2000).

If you are charged with a crime in Tennessee, contact a criminal defense attorney. A criminal defense attorney will explain the different procedural avenues applicable in your case. Our offices handle criminal cases in Knoxville, Sevierville, Pigeon Forge, Gatlinburg, Maryville, Newport, Johnson City, and Morristown.

Tennessee Criminal lawyers understand that any time you receive punishment from a court; you will have questions about its terms and conditions. The judge often uses legal terminology that only lawyers and individuals intimately involved with the court system can understand. One question that is asked with regularity about punishment is the difference between probation and parole.

Probation is a criminal sentence. In Tennessee, first-time offenders are usually considered for probation. The length of probation and its terms are given at sentencing. Once the person has completed the terms of probation, he or she is free of court supervision. A person’s chances for probation increase significantly if his or her offense was not violent. Someone given probation is usually given a jail sentence that gets suspended or reduced as long as the person follows the conditions of probation. The most common conditions of probation require the individual to keep in touch with a probation officer, work or look for work, go to school, and stay off drugs. Other terms may include going to alcohol or drug-abuse treatment programs, taking drug tests, or attending various educational classes related to the offense committed.

Parole is a way of completing a criminal sentence of incarceration. Typically, the individual has been sentenced to a range of years in prison. After the offender has served the minimum amount of time authorized, the parole board meets to decide if the person is ready to be released from incarceration. This allows the offender to finish out the remainder of his or her sentence outside of prison. Parole boards examine numerous factors in the decision whether to release someone from incarceration. They consider the crime committed, the victim’s perspective, the offender’s progress in prison, whether the prison is crowded, and whether the offender has somewhere to go if indeed released. If parole is satisfactorily completed, the remaining portion of the criminal sentence is discharged.

Both probation and parole may be revoked if the offender seriously violates the terms or conditions. Whatever you are charged with, a Tennessee criminal attorney can help explain in full detail the criminal process. Being charged with a crime is a confusing and frustrating time. We are here to help by serving the Knoxville, Sevierville, Pigeon Forge, and Gatlinburg area.