Confrontation Clause Law: State v. Franklin

The Tennessee Supreme Court added a chapter to our Confrontation Clause jurisprudence in State v. Franklin, 308 S.W.3d 799 (2010). Justice Clark and her colleagues held that statements exchanged between two private parties, with no law enforcement personnel involved, are nontestimonial. Consequently the accused's confrontation right doesn't arise.

During the late morning of Saturday, July 29, 2006, a man robbed a lady working at Yorkshire Cleaners in Memphis. When the robber exited, the employee ran next door to a contractor working on restaurant construction. She asked him to write down the license tag number of a white minivan leaving the parking lot. He did so.

That tag number, 523-FTD, was registered to Darrell Franklin. The cleaners' employee identified him in a photographic lineup, and he was arrested. For some unexplained reason the contractor was not located for trial.

The jury considered and accepted as true the note containing the defendant's license tag number. They rejected defendant's lame alibi about being with his family.

Q.       So it didn't matter when the robbery was committed, what day, what hour, your standard excuse would have been "I was home with my wife and kids"?
A.       Right.

Franklin was convicted of robbery and sentenced to 12 years in prison. The Court of Criminal Appeals reversed but the Supreme Court affirmed. The appellate bone of contention was the license tag number note.

That issue was resolved by focusing on the primary purpose of the employee and the contractor. They were involved in an ongoing emergency and were primarily concerned with the perpetrator's present capture rather than a future criminal trial.

Finally, the Supreme Court had to decide whether the nontestimonial hearsay fit an exception. The justices held that the recording and delivery of the written note constituted an excited utterance under Evidence Rule 803(2).

Keep this opinion in mind during your trials. I predict that it will apply to many situations.


Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law.