Criminal Justice Section April 1998 Newsletter Articles

 

No Plea Bargaining Policy On Violent Crimes
by William L. Gibbons, District Attorney General, Shelby County, Tennessee

Supreme Court Review

Letter from the Chair, Karl Dean, Chair, TBA’s Criminal Justice Section 1997-1998

 

Effective January 1, 1997, the Shelby County District Attorney’s Office no longer offers plea bargains on indictments for murder, armed robbery and rape involving the use of a deadly weapon. Once indicted for any such offense, the defendant should expect to either plead guilty to the charge or be tried on that charge. In essence, there is no longer bargaining on the offense once there is an indictment.
The result is that a person who commits a murder, armed robbery, or rape involving the use of a deadly weapon in Shelby County is tried for what the person did and not allowed to plead to a legal fiction.
The no plea bargaining policy reflects the office’s decision to place more of its resources and effort on combating violent crime.
This new policy is in large part possible due to a process by which representatives of the District Attorney’s Office meet with representatives of the Memphis Police Department and the Shelby County Sheriff’s Office to screen cases involving the violent crimes covered by this policy. This early review process is helping ensure that the D.A.’s Office has a good case with strong evidence before someone is charged and a proposed indictment is presented to the grand jury. It is a prime example of how cooperation among the D.A.’s Office, the Memphis Police Department and the Shelby County Sheriff’s Office can have a positive impact on our ability to tackle crime.
In addition to holding individuals accountable for their acts, the D.A.’s Office hopes the no plea bargaining policy will serve as a deterrent to the commission of other, similar crimes.
For the policy to serve as a deterrent, it must filter down to the street level so that potential offenders are aware of it. Two marketing and communications firms volunteered their services to help get the word out. The firms of Conaway Brown and Trust Marketing worked together to develop an aggressive marketing initiative that includes radio, television, newspaper, billboards and bus boards. Businesses are encouraged to place "NO DEALS" decals on the windows of their businesses, and neighborhood watch groups are helping to distribute the decals and bumper stickers. Over 40,000 bumper stickers have been distributed.
The marketing initiative cost about one million dollars of which $588,395 is from in-kind contributions, with the rest being donated.
Shelby County Sheriff A.C. Gilless donated $200,000 from monies confiscated from drug dealers. Former Shelby County Mayor Bill Morris has lead the effort to raise the needed private funds to fully carry out the marketing initiative.
It appears that the "No Deals" policy had a positive impact in reducing violent felonies in 1997. Homicides attributed to criminal conduct, (murder, voluntary manslaughter, etc.) dropped approximately 12% in 1997 from 1996. Other violent felonies such as robberies were down approximately 10% from 1996 as well.
It appears that the reduction in violent felonies began in June of 1997. This was when the "No Deals" campaign began on the radio, television, news media, etc. The downward trend has
continued since then.
In 1997, the Shelby County grand jury returned 1,075 indictments that come under the "No Deals" policy. Although most of the cases disposed of in 1997 were not indicted before January 1, 1997, of those indictments charging murder first degree, murder second degree, especially aggravated robbery, aggravated robbery and aggravated rape, 86% pled guilty to the original charge in 1997.

So far, the "No Deals" policy seems to be a success. Nothing but positive feedback has been received from personnel within the criminal justice system, as well as the general public. Increasingly strict adherence to the policy has resulted in acceptance by the defense bar as well as defendants. As more defendants come under this policy, we expect the message to reach the targeted audience of potential violators and deter some. Those that will not be deterred will be punished. We believe this policy and its effects will help restore public confidence in the criminal justice system.

Since publication of the last issue of Criminal Law, the Tennessee Supreme Court has rendered opinions in the following cases related to criminal law:

Sex Offenses; Bill of Particulars; Election of Offenses:
State v. Speck, 944 S.W.2d 598 (Tenn. 1997)
Allowing state to elect an offense which allegedly occurred on a date other than the specific date mentioned in a bill of particulars did not prejudice the defendant. Admission of "fresh complaint" evidence was error, but harmless.
Sentencing; Enhancement Factors; Particular Vulnerability:
State v. Poole, 945 S.W.2d 93 (Tenn. 1997)
The state cannot rely on age alone to establish "particular vulnerability." All enhancement factors must meet the test of being "appropriate for the offense."
Plea Bargain; Negotiating Classification or Release Eligibility:
Hicks v. State, 945 S.W.2d 706 (Tenn. 1997)
A knowing and voluntary guilty plea waives any irregularity as to offender classification or release eligibility. A plea bargained Range II sentence (10 years), with Range I release eligibility (30%) is valid.
Searches; Road Blocks:
State v. Downey, 945 S.W.2d 102 (Tenn. 1997)
DUI sobriety roadblock can be reasonable seizure under State Constitution provided it is established and operated in accordance with predetermined operational guidelines and supervisory authority.
Defenses; Renunciation:
State v. Jackson, 946 S.W.2d 329 (Tenn. Crim. App. 1996)
In the case of affirmative defenses such as renunciation, the burden of raising the defense rests with the defendant. Here, the defendant properly raised the defense, but the State negated the renunciation beyond a reasonable doubt. Concurring opinion would limit renunciation defense only to situations where the crime is abandoned before any harm befalls the victim.
Probation Revocation; Lab Reports:
State v. Gregory, 946 S.W.2d 829 (Tenn. Crim. App. 1997)
State v. Wade, 863 S.W.2d 406 (Tenn. 1993) held that the state could not revoke probation based upon an unidentified lab report admitted into evidence without a finding of good cause as to the absence of the lab technician and proof of reliability of the test. This case spells out how the state can show good cause and reliability by affidavit.

Death Penalty; Post-Conviction:
Harris v. State, 947 S.W.2d 156 (Tenn. Crim. App. 1996)
Good summary of general post-conviction rules and standards of review; offering no mitigation evidence, other than defendant’s testimony, is not always ineffective assistance, however, a strategy of silence must be based on a reasonable investigation for mitigating evidence; the decision not to investigate a defendant’s family childhood background may be a tactical choice; evidence of deprived and abusive childhood is entitled to little weight; Mack Brown is not to be applied retroactively; no Middlebrooks error if Defendant is convicted of both deliberate and felony murder; no problem with sequential jury instructions.
Double Jeopardy; Multiple Convictions:
State v. Green, 947 S.W.2d 186 (Tenn. Crim. App. 1997)
Convictions for driving on a revoked license and habitual traffic offender arising from single episode cannot withstand Tennessee’s double jeopardy test.
Self-Incrimination; Right to Counsel; Mental Examinations:
State v. Martin, 950 S.W.2d 20 (Tenn. 1997).
Where a defendant asserts a mental state defense, a court-ordered mental evaluation does not violate self-incrimination provided any statements made during the evaluation, and any "fruits" derived from such statements, are used by the prosecution only for impeachment or rebuttal of the evidence concerning mental state introduced by the defendant. Defendant does not have a right to counsel during the evaluation itself.
Criminal Responsibility:
State v. Carson, 950 S.W.2d 951 (Tenn. 1997).
Common law rule (that a defendant who aids and abets a co-defendant in the commission of a criminal act is liable not only for that crime but also for any other crime committed by the co-defendant as a natural and probable consequence of the crime originally aided and abetted) is still viable under T.C.A. § 39-11-401 and 402.
Post-Conviction, Motion to Reopen, Appellate Review:
Fletcher v. State, 951 S.W.2d 378 (Tenn. 1997).
Supreme Court has jurisdiction to review the denial of a Motion to Reopen a post-conviction petition under T.R.A.P. 11.
Double Jeopardy, Multiple Punishment:
State v. Pennington, 952 S.W.2d 420 (Tenn. 1997).
Post-arrest detention of a defendant pursuant to a policy which requires persons charged with DWI to be detained in custody for 12 hours upon their refusal to submit to a breath-alcohol test does not constitute punishment which prevents, under double jeopardy principles, a conviction and punishment for the DWI.
Post-Conviction, Statute of Limitations:
Carter v. State, 952 S.W.2d 417 (Tenn. 1997).
Post-Conviction Procedure Act of 1995 does not provide additional time to file post-conviction for petitioners whose previous three-year statute of limitations has expired.
Commutation Power of Governor:
Carroll v. Raney, 953 S.W.2d 657 (Tenn. 1997).
Defendant was not entitled to Habeas Corpus on the theory that his commuted sentence had expired prior to being revoked by the Governor. Defendant was sentenced to death in 1962. In 1972, Governor Dunn commuted the sentence to "22 years to life." This sentence was not possible for the offense at the time, so the defendant argued that it should be treated as a 22 year sentence which had expired prior to its revocation by the Governor. Supreme Court reviews pardon and commutation powers of Governor and concludes that Governor can commute to any sentence less than imposed sentence regardless of whether the sentence as commuted would be appropriate for a court to impose.
Proof of Prior Bad Acts:
State v. Dubose, 953 S.W.2d 649 (Tenn. 1997).
Strict requirements of Tenn. R. Evid. 404(b) do not apply to testimony of prior injuries inflicted upon a child victim when the injuries are not explicitly attributed to the defendant. Testimony of prior suspected abuse explicitly attributed to the defendant did meet the test of Rule 404(b) by showing that the abuse was committed "knowingly" and not by "accidental means." Strong dissent from Justice Birch.
Hearsay Exceptions, Excited Utterance, Medical Diagnosis:
State v. Gordan, 952 S.W.2d 817 (Tenn. 1997).
Child victim’s painful urination was a sufficiently serious and startling event to qualify her statement identifying the victim as an excited utterance under Tenn. R. Evid. 803(2). Sufficient foundation was established to show that child victim’s statements to a child psychologist were made for the purposes of diagnosis and treatment under Tenn. R. Evid. 803(4).
Scientific Evidence, Standards for Admissibility:
McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997).
Standard for the admissibility of scientific evidence in Tennessee Courts. While Court does not expressly adopt Daubert, it comes close. Courts should consider five factors in determining reliability of scientific evidence: (1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether, as formerly required by Frye, the evidence is generally accepted in the scientific community; and (5) whether the expert’s research in the field has been conducted independent of litigation.
Expert Testimony, Ultimate Issue, Susceptibility to Entrapment:
State v. Shuck, 953 S.W.2d 663 (Tenn. 1997).
Trial court abused its discretion by excluding expert testimony about the defendant’s unique susceptibility to inducement on the sole basis that the expert testimony expressed an opinion on an ultimate issue. Good discussion of entrapment defense, admissibility of expert testimony, and appellate review under abuse of discretion standard.
False Reporting, Statutory Construction:
State v. Levandowski, 955 S.W.2d 603 (Tenn. 1997).
False report statute [T.C.A. § 39-16-502(a)(1)] only applies to statements volunteered or initiated by an individual. It does not apply to statements in response to questioning. Good case on statutory construction.
HGN, Scientific Evidence, Expert Witness:
State v. Murphy, 953 S.W.2d 200 (Tenn. 1997).
Horizontal Gaze Nystagmus (HGN) sobriety test is a scientific test which is admissible into evidence if offered by an expert witness and the requirements of Tenn. R. Evid. 702 and 703, and McDaniel v. CSX are satisfied.
Rape Shield, Evidence:
State v. Sheline, 955 S.W.2d 42 (Tenn. 1997).
Every woman who has sexual relations with a man she meets in a bar is not engaging in "distinctive" sexual behavior which would justify an exception to the Rape Shield Law contained in Rule 412, Tennessee Rules of Evidence.
Death Penalty, Middlebrooks Exception:
Carter v. State, 958 S.W.2d 620 (Tenn. 1997).
Middlebrooks not violated when a general verdict of guilt is returned on a one-count indictment which alleges both common law and felony murder.
Indictments, Culpable Mental State:
State v. Hill, 954 S.W.2d 725 (Tenn. 1997).
Failure to allege a mens rea (culpable mental state) in an indictment charging rape does not automatically constitute a fatal defect rendering the indictment void. For offenses which neither expressly require nor plainly dispense with the requirement for a culpable mental state, an indictment will be sufficient if it is in proper form, provides constitutional notice, and would prevent double jeopardy.
DNA, PCR, Scientific Evidence:
State v. Begley, 956 S.W.2d 471 (Tenn. 1997).
Polymerase chain reaction (PCR) method is exempt from judicial determination of reliability under McDaniel v. CSX by virtue of T.C.A. § 24-7-117(a). Good discussion of DNA and normal requirements for admission of scientific evidence.
Parole, Alcoholics Anonymous, First Amendment:
Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478 (Tenn. 1997).
An inmate was denied parole so that he could continue to receive the benefit of an AA program. Since AA is a religious program, required participation in it violates the Establishment Clause of the First Amendment. An inmate’s participation or non-participation in an AA program may not be considered by the Parole Board in deciding whether to grant or deny parole.
Speedy Trial, Pre-Indictment Delay, Due Process:
State v. Utley, 956 S.W.2d 489 (Tenn. 1997).
The right to a speedy trial is not triggered by the issuance of an arrest warrant. Speedy trial rights are not implicated until the accused has been actually restrained by an arrest or charged by formal grand jury action. A delay of 5 years from the issuance of an arrest warrant to trial does not violate speedy trial rights in that defendant was tried within 8 months of his actual arrest on the warrant. However, case is remanded to the trial court to consider whether the pre-indictment delay violated due process.
Hearsay, Statement for Medical Diagnosis:
State v. Stinnett, 958 S.W.2d 329 (Tenn. 1997).
In determining whether a child’s statement to a physician concerning a sexual crime and the perpetrator was made for the purposes of diagnosis and treatment and admissible under TENN. R. EVID. 803(4), the court should consider the totality of the circumstances relating to the giving of the statement.
Diversion, Procedure for Contesting Facts:
State v. Pinkham, 955 S.W.2d 956 (Tenn. 1997).
District Attorney has a duty to disclose in the record the factual basis and rationale for denying diversion. If, on writ of certiorari, defendant contests the facts upon which the D.A. relied, the trial court should hold an evidentiary hearing to resolve the factual dispute. The trial court should not consider any evidence shown to be materially false or obtained in violation of constitutional rights.
Terry Stop:
State v. Yeargan, 958 S.W.2d 626 (Tenn. 1997).
Officer’s decision to stop was based upon reasonable suspicion supported by specific and articulable facts that the defendant was driving on a revoked license when the officer, six months earlier, had arrested the defendant for driving under the influence of an intoxicant and had been present in court when the defendant was convicted of that offense and his driver’s license revoked for one year.
Death Penalty, Proportionality Review, HAC:
State v. Bland, 958 S.W.2d 651 (Tenn. 1997).
Precedent-seeking approach to comparative proportionality review and factors relevant to the approach adopted. Death sentence is not disproportionate unless the case, taken as a whole, is plainly lacking in circumstances consistent with those where the death penalty has been imposed. Only purpose is to identify and invalidate an aberrant death sentence. Universe of cases only includes cases where death sentencing hearing occurred. Appellate briefs must fully address this issue specifically identifying similar cases relevant to the analysis. Court will create CD-Rom death penalty database. Sufficient evidence of torture based upon circumstances where unarmed victim chased and repeatedly shot in leg causing painful injuries.
Death Penalty, HAC, Plea Bargains:
State v. Mann, 959 S.W.2d 503 (Tenn. 1997).
Fact that State makes an offer to settle the case with a sentence less than death does not preclude the State from seeking the death penalty when the offer is rejected by the defendant. Sufficient evidence of torture and serious physical abuse based on over 40 wounds, digital rape, and strangulation while victim conscious. Sentence not disproportionate under Bland criteria.
Death Penalty, Post-Conviction, Duty to Investigate Mitigation:
Henley v. State, 960 S.W.2d 572 (Tenn. 1997).
Proof does not preponderate against trial court’s finding that petitioner suffered no prejudice from trial counsel’s failure to investigate and prepare mitigation phase witnesses as any additional mitigation evidence would have been merely cumulative, offered by witnesses with a limited relationship with petitioner, and aggravating circumstance was strong. Counsel was not ineffective in failing to investigate mental condition and request mental evaluation of defendant as mental evidence would have been inconsistent with the guilt phase defense theory and inconsistent with defendant’s trial testimony. Dissent by Reid and Birch.
Defenses, Diminished Capacity; Death Penalty, Double Counting:
State v. Hall, Jr., 958 S.W.2d 679 (Tenn. 1997).
"Diminished capacity" is not a defense, but expert testimony is relevant to show that because of a mental disease or defect a defendant lacked the capacity to form a culpable mental state. Evidence in present case does not meet this standard. Middlebrooks does not embrace a broad prohibition against "double counting" in the sense that it does not prevent the same evidence from being used to establish more than one aggravating circumstance. The failure to charge defendant’s special requests relating to non-statutory mitigating circumstances was harmless.
Kidnapping, Double Jeopardy, Multiple Convictions from One Episode:
State v. Ricky Michael Dixon, No. 03S01-9704-CR-00043 (Tenn. Dec. 15, 1997).
Any restraint in addition to that which is necessary to consummate rape or robbery may support a separate conviction for kidnapping. The due process principles and test of State v. Anthony are still valid. Dragging the victim after initial assault 30 or 40 feet to a more secluded location to avoid detection exceeded the restraint necessary to consummate the attempted sexual battery. Dissent by Reid and Birch.
Election of Offenses; Sentencing, Particular Vulnerability:
State v. Walton, Jr., 958 S.W.2d 724 (Tenn. 1997).
Convictions for aggravated rape, aggravated sexual battery, and incest must be reversed where state failed to present evidence of dates or order of occurrence of multiple sexual encounters, did not elect which of the numerous types of sexual acts it relied upon to establish the convictions, and failed to present evidence which narrowed the multiple incidents by asking the child victim to relate incidents by specific month, memorable occasion, or special event. Convictions for aggravated rape and aggravated sexual battery from one incident implicate double jeopardy concerns. Age alone does not establish "particular vulnerability." Court must consider factors set forth in State v. Poole, 945 S.W.2d 93, 96 (Tenn. 1997).
State May Seek Death Penalty After Reversal of Life Sentence:
State v. Phipps, Jr., 958 S.W.2d 538 (Tenn. 1997).
State may seek death penalty on retrial after reversal of conviction in which the state did not seek death penalty. However, state’s pursuit of death penalty following successful appeal of a conviction for which the death penalty originally was not sought gives rise to a rebuttable presumption of prosecutorial vindictiveness. Presumption may only be overcome by clear and convincing evidence which demonstrates that the prosecutor’s decision was motivated by a legitimate purpose. State must proffer fact specific, legitimate, on-the-record explanation for seeking the death penalty which dispels the appearance of vindictiveness. Court explains how State can meet this burden and remanded to trial court to give state the opportunity to do so.
Pre-Accusatorial Delay; Sentence Enhancement, Uncharged Conduct:
State v. William Jeffery Carico, No. 03S01-9610-CR-0009 (Tenn. Dec. 29, 1997).
Factors to be considered in determining whether pre-accusatorial delay violates due process are the length of the delay, the reason for the delay, and the degree of prejudice. Child victim reported rape by step-father in 1985. Before district attorney was able to act, she recanted. In 1991 the victim renewed her allegation and prosecution was commenced. Although seven year delay from time sexual offense was reported to DHS and commencement of prosecution was excessive, due process was not violated because the delay was not caused by the State and the defense was not prejudiced. Sentence enhancement factor for prior "criminal behavior" includes prior acts of illegal sexual conduct for which there has been no conviction.
Jury Trial, Absence of Juror; Lesser Offenses:
State v. Cleveland, 958 S.W.2d 548 (Tenn. 1997).
Absence of a juror during 20 minutes of closing argument was plain error, violated the fundamental right of trial by jury, and was not subject to harmless error analysis. Aggravated assault is not a lesser grade or lesser included offense of attempted aggravated rape.
Double Jeopardy, Multiple Punishments for Same Offense:
State v. Lewis, 958 S.W.2d 736 (Tenn. 1997).
Double jeopardy bars multiple convictions for aggravated arson of a single structure containing several apartment units.
Pre-textual Stops:
State v. Vineyard, 958 S.W.2d 730 (Tenn. 1997).
Vehicle stop based upon probable cause is valid under the Tennessee Constitution without regard to the subjective motivations of police officers. State constitution affords no greater protection than federal constitution on this issue. c.f. United States v. Whren, 116 S.Ct. 1769 (1996). Detective working on "drug interdiction" squad had anonymous tip that defendant would travel on I-75 with a load of marijuana in his truck. Detective spotted truck on Interstate and followed it for seven miles during which he observed three traffic violations before stop was made.
Double Jeopardy, Contempt:
State v. Winningham, 958 S.W.2d 740 (Tenn. 1997).
Separate proceedings and punishments for contempt and the criminal offense underlying the contempt do not violate double jeopardy principles under either the state or federal constitution.
Terry Stop, Plain Feel Doctrine:
State v. Ray Anthony Bridges, No. 02S01-9606-CC-00053 (Tenn. Dec. 31, 1997).
Although informant’s tip was not sufficiently corroborated or verified to justify a lawful arrest, it was sufficient to justify a stop and frisk of defendant. However, under the "plain feel" doctrine officer did not have probable cause to believe standard pill bottle felt during the frisk was contraband. Officer testified that he immediately recognized it as the kind used by crack dealers. Officer would have to be clairvoyant to know that contents of pill bottle were contraband. Officer’s subjective belief that an object is contraband is not sufficient unless it is objectively reasonable.
Death Penalty, Middlebrooks, Harmless Error:
State v. Boyd, 959 S.W.2d 557 (Tenn. 1998).
Middlebrooks error was harmless under the analysis set forth in State v. Howell, 868 S.W.2d 238 (Tenn. 1993) where the one remaining valid aggravating circumstance was a prior conviction for second degree murder. Strong dissent from J. Reid.
Election of Offenses, Continuing Crimes:
State v. Gregory Jay Hoxie, No. 03S01-9706-CR-00061 (Tenn. Feb. 23, 1998).
Election requirement is not applicable when the crimes charged (stalking and harassment) require the State to prove a continuous course of unlawful conduct.
Appellate Review, Certified Questions:
State v. Douglas Brian Irwin, No. 03-S01-9702-CC-00021 (Tenn. Feb. 23, 1998).
Reaffirms specific requirements set forth in State v. Preston, 759 S.W.2d 647 (Tenn. 1988), which must be followed by defendants to properly reserve the right to appeal a certified question of law in accordance with Tenn. R. Crim. P. 37(b).
Terry Stop of Automobile, Reliability of Informants:
State v. Grapel Simpson, No. 02S01-9702-CC-00010 (Tenn. Feb. 23, 1998).
Officer received a tip from a confidential informant that the defendant was traveling west on Highway 64 from Memphis and would arrive in Selmer "any minute" with 100 dilaudid pills. Officer testified that he knew informant, but did not testify that he had given reliable information in the past. There was also no indication as to how the informant had acquired his information. Based on tip, officer proceeded to Highway 64, spotted the defendant’s vehicle, and stopped it. A subsequent search allegedly conducted with consent revealed the 100 dilaudid pills. Two-pronged test of reliability set forth in Jacumin need not be as strictly applied if the informant’s tip is being used to establish reasonable suspicion for a Terry stop, rather than probable cause. Informant’s tip which was corroborated by independent police work (spotting vehicle on highway) exhibited sufficient indicia of reliability and provided officer with reasonable suspicion to conduct a Terry stop. Strong dissent by Reid.
Asset Forfeture Excessive Fines, Proportionality:
Page G. Stuart v. Dep’t. of Safety, No. 01-S-01-9612-CH-00239 (Tenn. March 2, 1998).
Forfeiture of property involved in drug transactions does not impose "punishment" for the purposes of double jeopardy analysis. Adopts test employed in U.S. v. Ursery, 518 U.S. 267 (1996). Proceeds of illegal drug transactions are not subject to an excessive fines analysis. On the other hand, property used to facilitate a drug transaction is subject to an excessive fines analysis. In determining whether the forfeiture is excessive, the court should consider the gravity of the underlying offense, the culpability of the claimant, and the relationship between the property and the offense.
Insanity, Notice, Court-ordered Examination:
State v. Thomas Dee Huskey, No. 03S01-9610-CR-00096 (Tenn. March 9, 1998).
Court-ordered mental examination conducted pursuant to Tenn. R. Crim. P. 12.2 does not violate the right against self-incrimination. Refusal to allow defendant’s attorney to be present during evaluation does not violate the right to counsel.
Impeachment, Prior Inconsistent Statements, Foundation:
State v. Henry Lee Martin, No. 01S01-9611-CR-00225 (Tenn. March 9, 1998).
Under Tenn. R. Evid, 613(b), extrinsic evidence of a prior inconsistent statement is inadmissible until the witness denies or equivocates as to having made the prior inconsistent statement. A proper foundation must be laid prior to introduction of the extrinsic evidence.

I am honored to serve as the Chair of the TBA Criminal Justice Section for the year 1997-98. The TBA Criminal Justice Section is a unique entity in that it is comprised of prosecutors, public defenders, private defense counsel and judges. This collection of criminal justice professionals has the ability to speak for the growing needs of the criminal justice system. The larger interests of the "system" are commonly not expressed, as individual components of the criminal justice system promote, defend and seek to improve their particular areas of practice. It is to be expected and it is proper that prosecutors and defenders seek to enhance their abilities to perform their jobs with skill and professionalism. But as members of the Criminal Justice Section, we have the opportunity to examine issues from a more global perspective and enhance the position of the entire criminal justice community.
It is clear to me that prosecutors and defenders enter into the practice of criminal law not to seek the monetary awards that are more available in the civil arena, but to seek justice. The goal of public order and safety is not irreconcilable with the goal of preserving the individual freedoms and rights guaranteed to all citizens. I believe that the mutuality of interests among the participants in the criminal justice system is greater than we have recognized. The criminal justice system as a whole has been traditionally underfunded. This underfunding has become particularly acute in face of the ever-growing demands and expectations of the public in regard to issues of justice and law enforcement. It is my hope that the Criminal Justice Section can grow in membership and thus be a stronger voice in the discussion of the allocation of resources, but also a voice of reason and balance.
Please participate in the section and let me know your ideas. I encourage you to contribute to the newsletter by submitting articles to Mark Ward. I am happy to report that the Criminal Justice Section CLE program which was held in Nashville on February 26-27 was a great success. The seminar focused on expert witnesses and speakers included prosecutors, defense attorneys, law enforcement members, mental health providers, a judge and a medical examiner. The seminar hopefully appealed to all members of the section. I would like to thank all of the individuals who spoke at the seminar and those who attended.