per se rule in Tennessee

2026Mixon, 983 S.W.2d at 674 .

2018While Rule 609 “suggests that the commission of any felony is ‘generally probative’ of a criminal defendant’s credibility,” our supreme court has “rejected a per se rule that permits impeachment by any and all felony convictions.” Id. (internal citations omitted).

2005Noting that the decisions of this court have split on whether this mitigating factor is applicable in cases involving drug offenses, the court in Ross declined to analyze or distinguish them, concluding that when “the conviction for possession is based only upon constructive possession, and the threat of serious bodily injury is more conceptual than real, little justification exists in having a per se rule that excludes consideration of this mitigating factor” and that doing so to an entire class of offenses which do not inherently involve serious bodily injury “undermines the notion of indivi

2004App. 2002); Vanderford, 980 S.W.2d at 407 ; in State v. Ross, 49 S.W.3d 833, 848 (Tenn. 2001), the Tennessee Supreme Court held that when (1) the conviction for possession [of cocaine] is based only upon constructive possession, and (2) the threat of serious bodily injury is more conceptual than real, little justification exists in having a per se rule that excludes consideration of this mitigating factor.

2016Id. at 724 (citations omitted).

2016Id. at 724 (citations omitted).

2001However, the court in Clinard, 46 S.W.3d at 183 (footnote omitted), also affirmed that, “[i]n these days of monolithic law firms and increased opportunity and mobility for both clients and attorneys, a per se rule of vicarious disqualification is not feasible.” Accordingly, as an exception to the DR 5-105(D) rule of vicarious disqualification, the court adopted the case-by-case analysis employed by the United States Court of Appeals for the Seventh Circuit in Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir.1983), in determining whether an attorney’s prior representation mandates vicarious di

2000However, the court in Clinard, No. M1998-00555-SC-R11-CV, 2001 WL 530834, at *3 (footnote omitted), also affirmed that, “[i]n these days of monolithic law firms and increased opportunity and mobility for both clients and attorneys, a per se rule of vicarious disqualification is not feasible.” Accordingly, as an exception to the DR 5-105(D) rule of vicarious disqualification, the court adopted the case-by-case analysis employed by the United States Court of Appeals for the Seventh Circuit in Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983), in determining whether an attorney’s prior rep

2020Quadricus Dean, 2012 WL 3193366 , at *8 (“Having found the showup unnecessarily suggestive, we must consider whether the totality of the circumstances under the Biggers factors indicates that the identification was reliable despite the unnecessary suggestiveness of the showup.”); Beal, 614 S.W.2d at 82 (“However, under Tennessee law, as under federal law, the existence of an unnecessarily suggestive identification procedure will not trigger the application of a per se rule of exclusion.”). - 21 - The Defendant asserts that the State’s failure to produce evidence related to the photographic lin

2000Even if the showup procedure had risen to that level, it would not “trigger the application of a per se rule of exclusion.” State v. Beal, 614 S.W.2d 77, 82 (Tenn. Crim.

2015In fact, in Brown, the Court of Appeals relied in part on a case decided in Wisconsin in which the Court stated that “a one-sided arbitration provision may not be unconscionable under the facts of all cases.” Brown, 216 S.W.3d at 787 (quoting Wisconsin Auto Title Loans, Inc. v. Jones, 714 N.W.2d 155, 173 (Wisc. 2006)).

2015In fact, in Brown , the Court of Appeals relied in part on a case decided in Wisconsin in which the Court stated that “a one-sided arbitration provision may not be unconscionable under the facts of all cases.” Brown, 216 S.W.3d at 787 (quoting Wisconsin Auto Title Loans, Inc. v. Jones, 290 Wis.2d 514 , 714 N.W.2d 155, 173 (Wisc.2006)).

2015The Sellers argue that the per se rule adopted in Taylor runs afoul of the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), which held that any state rule that specifically disfavors arbitration agreements is preempted by the Federal Arbitration Act. 131 S. Ct. at 1746-48.

2015The Sellers argue that the per se rule adopted in Taylor runs afoul of the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), which held that any state rule that specifically disfavors arbitration agreements is preempted by the Federal Arbitration Act. 131 S. Ct. at 1746-48.

2015Health Psychcare Servs., Inc., 6 P.3d 669, 691-92 (Cal. 2000); Iwen, 977 P.2d at 995-96 .10 Courts adhering to this view generally emphasize the fact that, in a contract of adhesion, the weaker party is powerless to bargain on his own behalf, and it is unfair for the stronger party to reserve for itself a judicial forum for most—or all—of its claims while requiring the weaker to waive any right to a judicial forum.

2015Health Psychcare Servs., Inc., 24 Cal.4th 83 , 99 Cal.Rptr.2d 745 , 6 P.3d 669, 691-92 (Cal. 2000); Iwen, 977 P.2d at 995-96. 10 Courts adhering to this view generally emphasize the fact that, in a contract of adhesion, the weaker party is powerless to bargain on his own behalf, and it is unfair for the stronger party to reserve for itself a judicial forum for most — or all — of its claims while requiring the weaker to waive any right to a judicial forum.

2015For example, in Dan Ryan Builders, Inc. v. Nelson, West Virginia’s highest court abrogated the holding in Arnold v. United Companies Lending Corp. to the extent that it created a per se rule against non-mutuality in arbitration agreements, suggesting that such a rule might be preempted by the FAA.4 Dan Ryan Builders, Inc. v. Nelson, 737 S.E.2d 550, 560 (W.

2015For example, in Dan Ryan Builders, Inc. v. Nel *753 son, West Virginia’s highest court abrogated the holding in Arnold v. United Companies Lending Corp. to the extent that it created a per se rule against non-mutuality in arbitration agreements, suggesting that such a rule might be preempted by the FAA. 4 Dan Ryan Builders, Inc. v. Nelson, 230 W.Va. 281 , 737 S.E.2d 550, 560 (2012) (abrogating Arnold, 511 S.E.2d at 857-58 ); see also Miller v. Equifirst Corp. of W.

2015See, e.g, Trigg v. Little Six Corp., No. E2013-01929-COA-R9-CV, 2014 WL 3734577, at *5, 10 (Tenn. Ct. App. July 28, 2014); Vintage Health Res., Inc. v. Guiangan, 309 S.W.3d 448, 461-62 (Tenn. Ct. App. 2009); Reagan v. Kindred Healthcare Operating, Inc., No. M2006-02191-COA-R3-CV, 2007 WL 4523092 , at *11-12 (Tenn. Ct. App. Dec. 20, 2007); Robert J.

2015See, e.g., Trigg v. Little Six Corp., No. E2013-01929-COA-R9-CV, 2014 WL 3734577, at *5, 10 (Tenn.Ct.App.

2008App., Mar. 3, 1995) (citing State v. Silvestri, 618 A.2d 821, 824 (N.H. 1992)).

2008The Gilbert Court “rejected a per se rule that if a person is determined by the magistrate to be a drug dealer, probable cause is shown to search that person’s residence.” 1995 WL 89697 , at *5 (citing State v. Silverstri, 618 A.2d 821, 824 (N.H. 1992)).

2002See State v. Coley, 32 S.W.3d at 837 . [5] The State also correctly argues that the issue was waived because the defense did not object to the verdict form at trial and did not list the issue in his motion for a new trial.

2001See State v. Coley, 32 S.W.3d at 838 n.14. 3 Justice Holder, joined by then Chief Justice Anderson, dissented from the adoption of a per se rule of exclusion in Coley and would have remanded the case for a hearing on admissibility.

2001However, the court in Clinard, 46 S.W.3d at 183 (footnote omitted), also affirmed that, “[i]n these days of monolithic law firms and increased opportunity and mobility for both clients and attorneys, a per se rule of vicarious disqualification is not feasible.” Accordingly, as an exception to the DR 5-105(D) rule of vicarious disqualification, the court adopted the case-by-case analysis employed by the United States Court of Appeals for the Seventh Circuit in Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir.1983), in determining whether an attorney’s prior representation mandates vicarious di

2000However, the court in Clinard, No. M1998-00555-SC-R11-CV, 2001 WL 530834, at *3 (footnote omitted), also affirmed that, “[i]n these days of monolithic law firms and increased opportunity and mobility for both clients and attorneys, a per se rule of vicarious disqualification is not feasible.” Accordingly, as an exception to the DR 5-105(D) rule of vicarious disqualification, the court adopted the case-by-case analysis employed by the United States Court of Appeals for the Seventh Circuit in Schiessle v. Stephens, 717 F.2d 417, 420 (7th Cir. 1983), in determining whether an attorney’s prior rep

2025While a felony “need not involve dishonesty” to be admissible for impeachment, our supreme court has “rejected a per se rule that permits impeachment by any and all felony convictions.” Waller, 118 S.W.3d at 371 .

2024Importantly, while a felony crime “need not involve dishonesty” to be admissible for impeachment, our supreme court has “rejected a per se rule that permits impeachment by any and all felony convictions.” Waller, 118 S.W.3d at 371 .

2020Flores-Ortega, 528 U.S. at 484 .

2020Flores-Ortega, 528 U.S. at 484 .

2018“To determine how probative a felony conviction is to the issue of credibility, the trial court must assess whether the felony offense involves dishonesty or false statement.” Id. (citing State v. Walker, 29 S.W.3d 885, 890 (Tenn. Crim.

2008Id.

2016Although cases decided by the Court of Criminal Appeals cited language from Schmerber that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, these cases do not rise to the level of “binding judicial precedent.” In State v. Humphreys, 70 S.W.3d 752 , 762–63 (Tenn. Crim.

2016See, e.g., State v. Humphreys, 70 S.W.3d 752, 760-61 (Tenn. Crim.

2011Specifically, the defendant argues that the trial court “utilized relations [between the defendant and the victim] as a general, independent ground for admission under [Tennessee] Rule [of Evidence] 404(b),” contrary to State v. Gilley, 173 S.W.3d 1 (Tenn. 2005), in which the supreme court ruled that its decision in State v. Smith, 868 S.W.2d 561 (Tenn. 1993), “did not establish a per se rule allowing the admission of evidence of prior acts of physical abuse committed by a defendant against a victim.” Gilley, 173 S.W.3d at 7 .

2011Specifically, the defendant argues that the trial court “utilized relations [between the defendant and the victim] as a general, independent ground for admission under [Tennessee] Rule [of Evidence] 404(b),” contrary to State v. Gilley, 173 S.W.3d 1 (Tenn. 2005), in which the supreme court ruled that its decision in State v. Smith, 868 S.W.2d 561 (Tenn. 1993), “did not establish a per se rule allowing the admission of evidence of prior acts of physical abuse committed by a defendant against a victim.” Gilley, 173 S.W.3d at 7 .

2015Taylor, 142 S.W.3d at 286 . -16- Lastly, a few jurisdictions adhere to what amounts to a per se rule, that any degree of non-mutuality of remedy included in an arbitration provision in an adhesion contract renders the arbitration provision unconscionable and unenforceable.9 See, e.g., The Money Place, LLC v. Barnes, 78 S.W.3d 714, 716-17 (Ark. 2002); Armendariz v. Found.

2015Lastly, a few jurisdictions adhere to what amounts to a per se rule, that any degree of non-mutuality of remedy included in an arbitration provision in an adhesion contract renders the arbitration provision unconscionable and unenforceable. 9 See, e.g., The Money Place, LLC v. Barnes, 349 Ark. 411 , 78 S.W.3d 714 , 716-17 (2002); Armendariz v. Found.

2015Health Psychcare Servs., Inc., 6 P.3d 669, 691-92 (Cal. 2000); Iwen, 977 P.2d at 995-96 .10 Courts adhering to this view generally emphasize the fact that, in a contract of adhesion, the weaker party is powerless to bargain on his own behalf, and it is unfair for the stronger party to reserve for itself a judicial forum for most—or all—of its claims while requiring the weaker to waive any right to a judicial forum.

2015Health Psychcare Servs., Inc., 24 Cal.4th 83 , 99 Cal.Rptr.2d 745 , 6 P.3d 669, 691-92 (Cal. 2000); Iwen, 977 P.2d at 995-96. 10 Courts adhering to this view generally emphasize the fact that, in a contract of adhesion, the weaker party is powerless to bargain on his own behalf, and it is unfair for the stronger party to reserve for itself a judicial forum for most — or all — of its claims while requiring the weaker to waive any right to a judicial forum.

2010Maclin, 183 S.W.3d at 351 .

2006In State v. Maclin, 183 S.W.3d 335, 351 (Tenn. 2006), our high court rejected this per se rule, stating: We favor an approach that considers both the testimonial hearsay analysis and the excited utterance analysis and that considers the totality of the circumstances in order to determine whether a particular excited utterance should be deemed testimonial.

2002After carefully reviewing the record and applicable authority, we hold that our decision in Wright v. State, 987 S.W.2d 26 (Tenn.1999), did not create a per se rule requiring the dismissal of all late-arising suppression of exculpatory evidence claims, and that the record in this case preponderates against the trial court’s determination that the petitioner’s liberty interest in raising such an issue was outweighed by the State’s interest in finality.

2002Accordingly, we conclude that our decision in Wright v. State, 987 S.W.2d 26 (Tenn.1999), did not create a per se rule requiring the dismissal of all late-arising suppression of exculpatory evidence claims and that the record in this case preponderates against the trial court’s determination that the petitioner's liberty interests in raising such an issue were outweighed by the State’s interest in finality.