witness hearing in Tennessee

2021Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim.

2014Generally, presenting a witness at the hearing is the only way a petitioner can establish that “the failure to discover or interview a witness inured to his prejudice . . . or . . . the failure to have a known witness present or call the witness to the stand resulted in the denial of critical evidence.” Id.

2016State v. Jordan, 325 S.W.3d 1, 40 (Tenn. 2010) (emphasis added) (additional citations omitted).

2016State v. Jordan, 325 S.W.3d 1, 40 (Tenn. 2010) (emphasis added) (additional citations omitted).

1996As we stated in Buckner v. Carlton, 623 S.W.2d 102 at 108 (1981): The general rule is that testimony given in a judicial proceeding, if pertinent thereto, is protected by an absolute privilege even though given maliciously and with knowledge of its falsity.

1996As we stated in Buckner v. Carlton, 623 S.W.2d 102 at 108 (Tenn.App.1981): The general rule is that testimony given in a judicial proceeding, if pertinent thereto, is protected by an absolute privilege even though given maliciously and with knowledge of its falsity.

2011State v. Harris, 839 S.W.2d 54, 68 (Tenn. 1992).

2010Id.

2019Furthermore, “if a discretionary decision is within a range of acceptable alternatives, we will not substitute our judgment for that of the trial court simply because we may have chosen a different alternative.” In re Estate of Schorn, No. E2013-02245-COA-R3-CV, 2015 WL 1778292 , at *6 (Tenn. Ct. App. Apr. 17, 2015) (citing White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999)) (emphasis added).

2019Cir. 1951); United States v. Johnson, 816 F.2d 918, 923-24 (3d Cir. 1987)); see also State v. Castagna, 901 A.2d 363, 373-74 (N.J. 2006) (holding that the trial court erred in denying defendants the right to cross-examine a prosecution witness concerning her polygraph test results, not because those results were reliable, but to impeach the witness because the test results caused the witness to change her statement). 16 with other applicable constitutional and evidentiary rules.” Damron, 151 S.W.3d at 518 (emphases added).

2019Cir. 1951); United States v. Johnson, 816 F.2d 918, 923-24 (3d Cir. 1987)); see also State v. Castagna, 901 A.2d 363, 373-74 (N.J. 2006) (holding that the trial court erred in denying defendants the right to cross-examine a prosecution witness concerning her polygraph test results, not because those results were reliable, but to impeach the witness because the test results caused the witness to change her statement). 16 with other applicable constitutional and evidentiary rules.” Damron, 151 S.W.3d at 518 (emphases added).

2019Cir. 1951); United States v. Johnson, 816 F.2d 918, 923-24 (3d Cir. 1987)); see also State v. Castagna, 901 A.2d 363, 373-74 (N.J. 2006) (holding that the trial court erred in denying defendants the right to cross-examine a prosecution witness concerning her polygraph test results, not because those results were reliable, but to impeach the witness because the test results caused the witness to change her statement). 16 with other applicable constitutional and evidentiary rules.” Damron, 151 S.W.3d at 518 (emphases added).

2019This Court was not persuaded, and emphasized the trial court’s discretion in the award of attorney’s fees under Tennessee Code Annotated section 35-15-1004(a). 9 In fact, the only statement as to value was a spontaneous statement from an unidentified speaker who was not a witness at the hearing. 10 Hal Roseman and his descendants were named as beneficiaries in the Trust. -8- We reiterate that “[a] trial court abuses its discretion only when it ‘applie[s] an incorrect legal standard or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the party complaining.’

2019This Court was not persuaded, and emphasized the trial court’s discretion in the award of attorney’s fees under Tennessee Code Annotated section 35-15-1004(a). 9 In fact, the only statement as to value was a spontaneous statement from an unidentified speaker who was not a witness at the hearing. 10 Hal Roseman and his descendants were named as beneficiaries in the Trust. -8- We reiterate that “[a] trial court abuses its discretion only when it ‘applie[s] an incorrect legal standard or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the party complaining.’

2018Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008).

2016The Supreme Court of Rhode Island discussed the impact of witness drug use, persuasively, as follows: Generally, “[e]vidence of intoxication is admissible for the purpose of attacking the credibility of a witness and to test his competency, his ability to perceive and remember and to communicate the subject matter of his testimony.” State v. Ahmadjian, 438 A.2d 1070, 1088 (R.I. 1981).

2013State v. Dooley, 29 S.W.3d 542, 551 (Tenn. Crim. -13- App. 2000).

2012The State contends that because the witnesses were equally available to both parties, the missing witness rule was inapplicable. -18- The prosecution in a criminal case is “under no obligation to produce every possible witness.” Hicks v. State, 539 S.W.2d 58, 59 (Tenn. Crim.

2012Similarly, in U.S. v. Thomas, 488 F.2d 334, 335 (6th Cir.1973), a Secret Service agent informed a potential witness in an ex parte communication that he would, in fact, be prosecuted if he testified.

2010That discretion should be exercised with the aim of protecting the goals of the rule and should take into account the risk that the witness for which an exception is sought “will alter or change factual testimony based on what is heard in the courtroom.” Id.; see also State v. Hill, 590 N.W.2d 187, 189 (N.D.1999) (recognizing that sequestration’s concern that a witness will otherwise tailor his or her testimony “ ‘is justified ... where “fact” or “occurrence” witnesses are called to testify’”) (quoting United States v. Bramlet, 820 F.2d 851, 855 (7th Cir.1987)). *41 C.

2010See Williams v. State, 258 Ark. 207 , 523 S.W.2d 377, 380 (1975) (“[A] violation by a witness of the rule of sequestration of wit *40 nesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness.”); Navarrete v. State, 283 Ga. 156 , 656 S.E.2d 814, 820 (2008) (“A violation of the rule of sequestration generally does not affect the admissibility of the testimony, but may impact on the credibility of the offending witness.”).

2010See Williams v. State, 258 Ark. 207 , 523 S.W.2d 377, 380 (1975) (“[A] violation by a witness of the rule of sequestration of wit *40 nesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness.”); Navarrete v. State, 283 Ga. 156 , 656 S.E.2d 814, 820 (2008) (“A violation of the rule of sequestration generally does not affect the admissibility of the testimony, but may impact on the credibility of the offending witness.”).

2010That discretion should be exercised with the aim of protecting the goals of the rule and should take into account the risk that the witness for which an exception is sought “will alter or change factual testimony based on what is heard in the courtroom.” Id.; see also State v. Hill, 590 N.W.2d 187, 189 (N.D.1999) (recognizing that sequestration’s concern that a witness will otherwise tailor his or her testimony “ ‘is justified ... where “fact” or “occurrence” witnesses are called to testify’”) (quoting United States v. Bramlet, 820 F.2d 851, 855 (7th Cir.1987)). *41 C.

2010See Williams v. State, 258 Ark. 207 , 523 S.W.2d 377, 380 (1975) (“[A] violation by a witness of the rule of sequestration of wit *40 nesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness.”); Navarrete v. State, 283 Ga. 156 , 656 S.E.2d 814, 820 (2008) (“A violation of the rule of sequestration generally does not affect the admissibility of the testimony, but may impact on the credibility of the offending witness.”).

2010See Williams v. State, 258 Ark. 207 , 523 S.W.2d 377, 380 (1975) (“[A] violation by a witness of the rule of sequestration of wit *40 nesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness.”); Navarrete v. State, 283 Ga. 156 , 656 S.E.2d 814, 820 (2008) (“A violation of the rule of sequestration generally does not affect the admissibility of the testimony, but may impact on the credibility of the offending witness.”).

2005See Namet, 373 U.S. at 188 ("[T]he prosecutor need not accept at face value every asserted claim of privilege, no matter how frivolous.").

2005State v. Todd, 631 S.W.2d 464, 466 (Tenn. Crim.

2004See 18 U.S.C. §§ 6002 et seq United States v. Mohney, 949 F.2d 1397, 1401 (6th Cir.1991).

2004Indeed, “[w]here the government has sufficient reason to believe that a witness may invoke his or her Fifth Amendment rights in response to questioning, the better practice requires that the prosecutor so inform the court, thus allowing for a voir dire to be conducted out of the presence of the jury to determine ‘reliably that the witness will claim the privilege and the extent and validity of the claim.’” United States v. Victor, 973 F.2d 975, 979 (1st Cir. 1992) (citing United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973)).

2004See State v. Dicks, 615 S.W.2d 126, 129 (Tenn. 1981) (citing United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973)).

2004Indeed, “[w]here the government has sufficient reason to believe that a witness may invoke his or her Fifth Amendment rights in response to questioning, the better practice requires that the prosecutor so inform the court, thus allowing for a voir dire to be conducted out of the presence of the jury to determine ‘reliably that the witness will claim the privilege and the extent and validity of the claim.’” United States v. Victor, 973 F.2d 975, 979 (1st Cir. 1992) (citing United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973)).

2004See State v. Dicks, 615 S.W.2d 126, 129 (Tenn. 1981) (citing United States v. Johnson, 488 F.2d 1206, 1211 (1st Cir. 1973)).