May 2014 Archives

A search warrant is formal judicial authorization for a search and/or seizure of property which may contain evidence of a crime. It requires a probable cause to suspect the property may contain evidence of a crime. It requires a 'nexus' between the suspected criminal activity and the property to be searched and/or seized. The evidence supporting the basis for the warrant is usually provided by affidavit. In a subsequent legal challenge to the issuance or validity of the warrant, a court must determine whether the affidavit contains sufficient information upon which to authorize the search in question. In the recent Tennessee case of State v. McCoy, E2013-02138-CCA-R3-CD (Tenn.Crim.App. 5-27-2014), the Court of Criminal Appeals upheld a search warrant for a computer based on suspected criminal online communication.

Sexual exploitation of a minor is a relatively broad offense under Tennessee law which can include a variety of different conduct. It can be committed when a person eighteen years of age or older somehow causes a minor, or a law enforcement officer posing as a minor, to engage in sexual activity observed by the defendant or another person, or displays sexual activity to that minor. 'Sexual activity' itself has a broad definition under Tennessee statute, and can include various forms of sex or even just 'patently offense' or 'lascivious' exhibition. Soliciting such activity is a crime even if the conduct is not ultimately performed. In the recent Tennessee case of State v. Ritchie, E2013-01849-CCA-R3-CD (Tenn.Crim.App. 5-19-2014), the Court of Criminal Appeals affirmed convictions for soliciting sexual exploitation of a minor where the defendant offered a child money to view the child in her underwear and without her bra.

Sexual exploitation of a minor is a relatively broad offense under Tennessee law which can include a variety of different conduct. It can be committed when a person eighteen years of age or older somehow causes a minor, or a law enforcement officer posing as a minor, to engage in sexual activity observed by the defendant or another person, or displays sexual activity to that minor. 'Sexual activity' itself has a broad definition under Tennessee statute, and can include various forms of sex or even just 'patently offense' or 'lascivious' exhibition. Soliciting such activity is a crime even if the conduct is not ultimately performed. In the recent Tennessee case of State v. Ritchie, E2013-01849-CCA-R3-CD (Tenn.Crim.App. 5-19-2014), the Court of Criminal Appeals affirmed convictions for soliciting sexual exploitation of a minor where the defendant offered a child money to view the child in her underwear and without her bra.

Typically, when most Tennessee drivers get behind the wheel, they practice safe driving practices. However, there are times when drivers make mistakes that can potentially lead to an accident. One mistake that some drivers make is drunk driving, which can be both financially and emotionally costly. A recent incident was reportedly the result of drunk driving.

'Hearsay' is an evidentiary term usually referring to  an assertion of fact made outside of court which a party attempts to introduce as evidence in court to prove the truth the assertion. The federal rules of evidence and the rules of evidence of each state have their specific definitions of what hearsay is, and when it is or is not admissible in a court proceeding. Hearsay is often excluded from admissibility in court proceedings based on the concept that evaluating the credibility of the assertion depends upon evaluating the credibility of a declarant (the person making the assertion) who is not testifying and who may not even be in the courtroom. But litigants and courts must be careful in determining whether a statement, even if allegedly made by another person, is actually hearsay under the applicable rules, and, if it is, whether some exception applies. Many remarks are not assertions of fact by the declarant, and so are not hearsay. In addition, there are a number of exceptions which may apply, depending on who is seeking to introduce the statement, the purpose in introducing it, and the nature of the proceeding.

In criminal trials, witness sequestration refers to excluding people who plan to testify from the courtroom while other witnesses are testifying. The purpose of witness sequestration is to prevent a witness' testimony from being influenced by the testimony of other witnesses. The rule is not absolute, of course. The defendant in a case has the right to be present throughout the trial, regardless of whether the defendant plans to testify. In the trial court's discretion, other witnesses essential to the presentation of the case may also be allowed to remain in the courtroom. In the recent Tennessee case of State v. Presson, W2012-00023-CCA-R3-CD (Tenn.Crim.App. 4-24-2014), the Court of Criminal Appeals affirmed a trial court ruling allowing the State's lead detective to remain in the courtroom during a trial for rape of a child and aggravated sexual battery.

In criminal trials, witness sequestration refers to excluding people who plan to testify from the courtroom while other witnesses are testifying. The purpose of witness sequestration is to prevent a witness' testimony from being influenced by the testimony of other witnesses. The rule is not absolute, of course. The defendant in a case has the right to be present throughout the trial, regardless of whether the defendant plans to testify. In the trial court's discretion, other witnesses essential to the presentation of the case may also be allowed to remain in the courtroom. In the recent Tennessee case of State v. Presson, W2012-00023-CCA-R3-CD (Tenn.Crim.App. 4-24-2014), the Court of Criminal Appeals affirmed a trial court ruling allowing the State's lead detective to remain in the courtroom during a trial for rape of a child and aggravated sexual battery.