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February 2013 Archives

Evidence in Plain View Lawfully Obtained

Evidence obtained from a warrantless search is generally not admissible against a defendant in a criminal case unless one of the exceptions to the warrant requirement applies. Among those exceptions are a search incident to arrest, a search performed with consent, exigent circumstances, a brief 'stop and frisk' supported by reasonable suspicion, and evidence in plain view. To lawfully obtain evidence in plain view, the police officer must view it from a place where the officer has a lawful right to be and the incriminating nature of the evidence must be immediately apparent. The conditions for plain view were met, according to the Court of Criminal Appeals, in the recent case of State v. McAllister, E2012-00493-CCA-R3-CD (Tenn.Crim.App. 2-7-2013).

Evidence in Plain View Lawfully Obtained

Evidence obtained from a warrantless search is generally not admissible against a defendant in a criminal case unless one of the exceptions to the warrant requirement applies. Among those exceptions are a search incident to arrest, a search performed with consent, exigent circumstances, a brief 'stop and frisk' supported by reasonable suspicion, and evidence in plain view. To lawfully obtain evidence in plain view, the police officer must view it from a place where the officer has a lawful right to be and the incriminating nature of the evidence must be immediately apparent. The conditions for plain view were met, according to the Court of Criminal Appeals, in the recent case of State v. McAllister, E2012-00493-CCA-R3-CD (Tenn.Crim.App. 2-7-2013).

Evidence in Plain View Lawfully Obtained

Evidence obtained from a warrantless search is generally not admissible against a defendant in a criminal case unless one of the exceptions to the warrant requirement applies. Among those exceptions are a search incident to arrest, a search performed with consent, exigent circumstances, a brief 'stop and frisk' supported by reasonable suspicion, and evidence in plain view. To lawfully obtain evidence in plain view, the police officer must view it from a place where the officer has a lawful right to be and the incriminating nature of the evidence must be immediately apparent. The conditions for plain view were met, according to the Court of Criminal Appeals, in the recent case of State v. McAllister, E2012-00493-CCA-R3-CD (Tenn.Crim.App. 2-7-2013).

Alibi Witness Excluded Due to Lack of Notice

A person hoping to rely upon an alibi defense in a criminal case should be aware that the state may be entitled to pre-trial notice of any witnesses the defense intends to use to establish it. This allows the state a fair opportunity to investigate the claim. Generally, an accused does not have to disclose his or her defense before trial, or disclose what witnesses will be called. But alibi is an exception, when relying upon witnesses other than the defendant to establish it. Under the Tennessee Rules of Criminal Procedure, when the state specifically requests notice of an alibi defense, a defendant is required to provide notice, or risk not being allowed to present those witnesses at trial. In the recent case of State v. Harding, M2011-00597-CCA-R3-CD (Tenn.Crim.App. 1-25-2013), a defendant was not allowed to present an alibi witness, due to failing to provide the requested notice about the intent to use that witness.

Alibi Witness Excluded Due to Lack of Notice

A person hoping to rely upon an alibi defense in a criminal case should be aware that the state may be entitled to pre-trial notice of any witnesses the defense intends to use to establish it. This allows the state a fair opportunity to investigate the claim. Generally, an accused does not have to disclose his or her defense before trial, or disclose what witnesses will be called. But alibi is an exception, when relying upon witnesses other than the defendant to establish it. Under the Tennessee Rules of Criminal Procedure, when the state specifically requests notice of an alibi defense, a defendant is required to provide notice, or risk not being allowed to present those witnesses at trial. In the recent case of State v. Harding, M2011-00597-CCA-R3-CD (Tenn.Crim.App. 1-25-2013), a defendant was not allowed to present an alibi witness, due to failing to provide the requested notice about the intent to use that witness.

Alibi Witness Excluded Due to Lack of Notice

A person hoping to rely upon an alibi defense in a criminal case should be aware that the state may be entitled to pre-trial notice of any witnesses the defense intends to use to establish it. This allows the state a fair opportunity to investigate the claim. Generally, an accused does not have to disclose his or her defense before trial, or disclose what witnesses will be called. But alibi is an exception, when relying upon witnesses other than the defendant to establish it. Under the Tennessee Rules of Criminal Procedure, when the state specifically requests notice of an alibi defense, a defendant is required to provide notice, or risk not being allowed to present those witnesses at trial. In the recent case of State v. Harding, M2011-00597-CCA-R3-CD (Tenn.Crim.App. 1-25-2013), a defendant was not allowed to present an alibi witness, due to failing to provide the requested notice about the intent to use that witness.

Statutory Rape Charges Are Not Required to Allege a Specific Date

In Tennessee, aggravated statutory rape occurs when there is sexual penetration between a victim, age thirteen to seventeen, and a person more than ten years older than the victim. When proving statutory rape allegations at trial, any individual incident must be distinguished sufficiently to separate it from other alleged incidents and to establish proper jurisdiction over the defendant, as well as to meet the elements of the offense. A specific date is not necessary. Where multiple incidents are alleged, a bill of particulars filed before the trial date may be helpful in further distinguishing the specific allegations. In the recent case of State v. Harding, M2011-00597-CCA-R3-CD (Tenn.Crim.App. 1-25-2013), appellate argument that six individual counts of aggravated statutory rape were not sufficiently distinguished by date in the indictment was weakened by the fact that no bill of particulars had been requested before trial.

Statutory Rape Charges Are Not Required to Allege a Specific Date

In Tennessee, aggravated statutory rape occurs when there is sexual penetration between a victim, age thirteen to seventeen, and a person more than ten years older than the victim. When proving statutory rape allegations at trial, any individual incident must be distinguished sufficiently to separate it from other alleged incidents and to establish proper jurisdiction over the defendant, as well as to meet the elements of the offense. A specific date is not necessary. Where multiple incidents are alleged, a bill of particulars filed before the trial date may be helpful in further distinguishing the specific allegations. In the recent case of State v. Harding, M2011-00597-CCA-R3-CD (Tenn.Crim.App. 1-25-2013), appellate argument that six individual counts of aggravated statutory rape were not sufficiently distinguished by date in the indictment was weakened by the fact that no bill of particulars had been requested before trial.

Statutory Rape Charges Are Not Required to Allege a Specific Date

In Tennessee, aggravated statutory rape occurs when there is sexual penetration between a victim, age thirteen to seventeen, and a person more than ten years older than the victim. When proving statutory rape allegations at trial, any individual incident must be distinguished sufficiently to separate it from other alleged incidents and to establish proper jurisdiction over the defendant, as well as to meet the elements of the offense. A specific date is not necessary. Where multiple incidents are alleged, a bill of particulars filed before the trial date may be helpful in further distinguishing the specific allegations. In the recent case of State v. Harding, M2011-00597-CCA-R3-CD (Tenn.Crim.App. 1-25-2013), appellate argument that six individual counts of aggravated statutory rape were not sufficiently distinguished by date in the indictment was weakened by the fact that no bill of particulars had been requested before trial.

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