TBA Criminal Justice Section January 2002 Newsletter

Happy New Year from the TBA Criminal Justice Section! We hope that the New Year brings all of you happiness, health and prosperity. For our country, 2002 can only be an improvement from 2001 and we hope it will be for all of you individually as well.

To start the year, we look at two significant pieces of legislation. First, an article on the USA Patriot Act, which enacted broad-based anti-terrorism legislation at the federal level. In addition, new Tennessee rules that took effect January 1, 2002, regarding lesser included offense instructions are examined in a reprint of a piece by David Raybin.

David M. Eldridge, newsletter editor
Ritchie, Fels & Dillard, P.C.
606 W. Main St., Ste 300
P.O. Box 1126
Knoxville, TN 37901-1126
865.637.0661
eldridge@rfdlaw.com

New Powers in a New Century - The USA Patriot Act - A Summary and Overview
David M. Eldridge

New rules regarding lesser included offense instructions
(reprinted from the November 2001 issue of the Tennessee Bar Journal)
David L. Raybin

Capital Justice Symposium
The TBA CLE Committee,chaired by William T. Ramsey, and the TBA Criminal Justice Section, chaired by Comer Donnell, start the new year by sponsoring a Capital Justice Symposium on February 19 in Nashville. The program, which qualifies for 5 general and 2 dual credit CLE hours, promises a balanced examination of death penalty issues by experienced prosecutors and defense attorneys. To register or learn more, visit TennBarU by clicking here.

New Powers in a New Century - The USA Patriot Act - A Summary and Overview
David M. Eldridge

Introduction
On October 26, 2001, in response to the terrorist attacks of September 11, President George W. Bush signed the USA PATRIOT Act (H.R. 3162) into law, enacting sweeping anti-terrorism legislation. The new bill significantly boosts the government’s law enforcement and surveillance powers in an attempt to prevent future threats of domestic terrorism. The Act has drawn praise from law enforcement officials who felt that these changes were long overdue in view of technological advances, while it has elicited concern from civil libertarians who say the bill gives police too much power over citizens. Bush signed the bill one day after it was passed overwhelmingly by both houses of Congress, 98-1 in the Senate and 357-66 in the House of Representatives.

Called the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, the new legislation gives unprecedented powers to federal law enforcement and intelligence agencies. Among other broadened and added powers, the Act: expands investigators' surveillance options and increases information sharing among government organizations related to terrorist threats; beefs up patrols along the U.S.-Canadian border; establishes a counter-terrorism fund; implements measures to prevent money laundering and other means of financing terrorism; and strengthens criminal laws against terrorism.

The following are highlights of key sections of the Act. For a more detailed analysis of the Act, see Vermont Senator Patrick Leahy’s web site, http://www.senate.gov/~leahy/press/200110/102401a.html .
The Act is extraordinarily broad and makes significant changes in the criminal code, surveillance authority, immigration, and appropriations. This article is meant only to briefly highlight the myriad sections of the Act and to allow the reader to be aware of the sweeping changes made in the wake of the September 11 attacks.

TITLE I – ENHANCING DOMESTIC SECURITY AGAINST TERRORISM
This Title lays the foundation for the USA PATRIOT Act.

Section 104 authorizes the Attorney General to request the Secretary of Defense to provide military assistance in support of Department of Justice (DOJ) activities relating to the enforcement of Federal criminal code (code) provisions regarding the use of weapons of mass destruction during an emergency situation involving a weapon of mass destruction.

Section 106 modifies provisions relating to presidential authority under the International Emergency Powers Act to: (1) authorize the President, when the United States is engaged in armed hostilities or has been attacked by a foreign country or foreign nationals, to confiscate any property subject to U.S. jurisdiction of a foreign person, organization, or country that he determines has planned, authorized, aided, or engaged in such hostilities or attacks (the rights to which shall vest in such agency or person as the President may designate); and (2) provide that, in any judicial review of a determination made under such provisions, if the determination was based on classified information such information may be submitted to the reviewing court ex parte and in camera.

TITLE II – EXPANDED SURVEILLANCE AUTHORITY
Title II contains many of the more controversial provisions of the Act, as it greatly broadens the surveillance powers of the government in investigations that relate to terrorist activities. This Title makes it easier to bypass judicial review in some search situations and it also “modernizes” the wiretap provisions of former laws, making it easier to begin investigating suspected terrorists through computer and cell phone data before a crime is committed. In order to prevent abuse of these new powers, the provisions of this Title include a sunset provision limiting certain of these provisions to between three and five years.

Section 201 authorizes the interception of wire, oral, and electronic communications relating to terrorism. This provision adds criminal violations relating to terrorism to the list of predicate statutes in the criminal procedures for interception of communications under chapter 119 of title 18, United States Code.

Section 202 authorizes the interception of wire, oral, and electronic communications relating to computer fraud and abuse, effectively adding “computer hacking” violations to the list of predicate statutes referenced in Section 201.

Section 203 amends rule 6 of the Federal Rules of Criminal Procedure to permit the sharing of grand jury information that involves foreign intelligence or counterintelligence with Federal law enforcement, intelligence, protective, immigration, national defense, or national security officials, subject to specified requirements.

This section also authorizes an investigative or law enforcement officer, or an attorney for the Government, who, by authorized means, has obtained knowledge of the contents of any wire, oral, or electronic communication or evidence derived therefrom to disclose such contents to such officials to the extent that it includes foreign intelligence or counterintelligence.

Section 206 grants roving surveillance authority after requiring a court order approving an electronic surveillance to direct any person to furnish necessary information, facilities, or technical assistance in circumstances where the Court finds that the actions of the surveillance target may have the effect of thwarting the identification of a specified person.

Section 209 permits the seizure of voice-mail messages under a warrant. This provision is not limited to terrorism investigations

Section 210 expands the scope of subpoenas for records of electronic communications to include the length and types of service utilized, temporarily assigned network addresses, and the means and source of payment (including any credit card or bank account number).

Section 211 amends the Communications Act of 1934 to permit specified disclosures to Government entities, except for records revealing cable subscriber selection of video programming from a cable operator.

Section 212 permits electronic communication and remote computing service providers to make emergency disclosures to a governmental entity of customer electronic communications to protect life and limb.

Section 213 authorizes Federal district courts to allow a delay of required notices of the execution of a warrant if immediate notice may have an adverse result and under other specified circumstances.

Section 214 prohibits use of a pen register or trap and trace devices in any investigation to protect against international terrorism or clandestine intelligence activities that is conducted solely on the basis of activities protected by the first amendment to the U.S. Constitution.
Section 217 makes it lawful to intercept the wire or electronic communication of a computer trespasser in certain circumstances.

Section 218 amends FISA to require an application for an electronic surveillance order or search warrant to certify that a significant purpose (currently, the sole or main purpose) of the surveillance is to obtain foreign intelligence information.

Section 219 amends rule 41 of the Federal Rules of Criminal Procedure to permit Federal magistrate judges in any district in which terrorism-related activities may have occurred to issue search warrants for searches within or outside the district.

Section 220 provides for nationwide service of search warrants for electronic evidence. Section 222 specifies that: (1) nothing in this Act shall impose any additional technical obligation or requirement on a provider of a wire or electronic communication service or other person to furnish facilities or technical assistance; and (2) a provider of such service, and a landlord, custodian, or other person who furnishes such facilities or technical assistance, shall be reasonably compensated for such reasonable expenditures incurred in providing such facilities or assistance.

Section 223 amends the Federal criminal code to provide for administrative discipline of Federal officers or employees who violate prohibitions against unauthorized disclosures of information gathered under this Act. Provides for civil actions against the United States for damages by any person aggrieved by such violations.

Section 224 terminates this title on December 31, 2005, except with respect to any particular foreign intelligence investigation beginning before that date, or any particular offense or potential offense that began or occurred before it.

Section 225 amends the Foreign Intelligence Surveillance Act of 1978 to provide immunity from suit for a provider of a wire or electronic communication service, landlord, custodian, or any other person that furnishes any information, facilities, or technical assistance in accordance with a court order or request for emergency assistance under such Act (for example, with respect to a wiretap).

TITLE III: INTERNATIONAL MONEY LAUNDERING ABATEMENT AND ANTI-TERRORIST FINANCING ACT OF 2001
This Title is designed to strike at the financial heart of terrorist organizations by enacting new laws governing money laundering crimes that “provide the financial fuel that permits transnational criminal enterprises to conduct and expand their operations to the detriment of the safety and security of American citizens.” This Title, unlike the sunset provisions of Title II, is to be reviewed by Congress after four years with the possibility of sunset at that time by joint resolution of Congress.

Subtitle A: International Counter Money Laundering and Related Measures
Section 311 amends Federal law governing monetary transactions to prescribe procedural guidelines under which the Secretary of the Treasury (the Secretary) may require domestic financial institutions and agencies to take specified measures if the Secretary finds that reasonable grounds exist for concluding that jurisdictions, financial institutions, types of accounts, or transactions operating outside or within the United States, are of primary money laundering concern. The section Includes mandatory disclosure of specified information relating to certain correspondent accounts.

Section 312 mandates establishment of due diligence mechanisms to detect and report money laundering transactions through private banking accounts and correspondent accounts.

Section 313 prohibits U.S. correspondent accounts with foreign shell banks.

Section 315 amends Federal criminal law to include foreign corruption offenses as money laundering crimes.

Section 316 establishes the right of property owners to contest confiscation of property under law relating to confiscation of assets of suspected terrorists.

Section 317 establishes long-arm Federal jurisdiction over: (1) foreign money launderers (including their assets held in the United States); and (2) money that is laundered through a foreign bank.

Section 318 expands the definition of “financial institution” for the purposes of money laundering statutes, 18 U.S.C. §§ 1956 and 1957, to include banks operating outside of the United States.

Section 319 authorizes the forfeiture of money laundering funds from interbank accounts. This section requires a covered financial institution, upon request of the appropriate Federal banking agency, to make available within 120 hours all pertinent information related to anti-money laundering compliance by the institution or its customer; grants the Secretary summons and subpoena powers over foreign banks that maintain a correspondent bank in the United States and requires a covered financial institution to terminate within ten business days any correspondent relationship with a foreign bank after receipt of written notice that the foreign bank has failed to comply with certain judicial proceedings. Finally, the section implements civil penalties for failure to terminate such relationship.

Section 320 permits the United States to institute forfeiture proceedings against the proceeds of foreign criminal offenses found within the United States.

Section 321 subjects to record and report requirements for monetary instrument transactions: (1) any credit union; and (2) any futures commission merchant, commodity trading advisor, and commodity pool operator registered, or required to register, under the Commodity Exchange Act.

Section 322 extends the prohibition against the maintenance of a forfeiture proceeding on behalf of a fugitive to include a proceeding by a corporation whose majority shareholder is a fugitive and a proceeding in which the corporation’s claim is instituted by a fugitive.

Section 323 authorizes Federal application for restraining orders to preserve the availability of property subject to a foreign forfeiture or confiscation judgment.

Section 326 directs the Secretary to issue regulations prescribing minimum standards for financial institutions regarding customer identity in connection with the opening of accounts. This section also requires the Secretary to report to Congress on: (1) the most timely and effective way to require foreign nationals to provide domestic financial institutions and agencies with appropriate and accurate information; (2) whether to require foreign nationals to obtain an identification number (similar to a Social Security or tax identification number) before opening an account with a domestic financial institution; and (3) a system for domestic financial institutions and agencies to review Government agency information to verify the identities of such foreign nationals.

Section 327 amends the Bank Holding Company Act of 1956 and the Federal Deposit Insurance Act to require consideration of the effectiveness of a company or companies in combating money laundering during reviews of proposed bank shares acquisitions or mergers.

Section 328 directs the Secretary to take reasonable steps to encourage foreign governments to require the inclusion of the name of the originator in wire transfer instructions sent to the United States and other countries, with the information to remain with the transfer from its origination until the point of disbursement. The section also requires annual progress reports to specified congressional committees.

Subtitle B: Bank Secrecy Act Amendments and Related Improvements
Section 351 amends Federal law known as the Bank Secrecy Act to revise requirements for civil liability immunity for voluntary financial institution disclosure of suspicious activities. The section also authorizes the inclusion of suspicions of illegal activity in written employment references.

Section 353 establishes civil penalties for violations of geographic targeting orders and structuring transactions to evade certain record-keeping requirements and lengthens the effective period of geographic targeting orders from 60 to 180 days.

Section 354 adds "money laundering related to terrorist funding" to the list of subjects to be dealt with in the annual National Money Laundering Strategy prepared by the Secretary of the Treasury pursuant to the Money Laundering and Financial Crimes Strategy Act of 1998.

Section 355 amends the Federal Deposit Insurance Act to permit written employment references to contain suspicions of involvement in illegal activity.

Section 356 instructs the Secretary to: (1) promulgate regulations requiring registered securities brokers and dealers, futures commission merchants, commodity trading advisors, and commodity pool operators, to file reports of suspicious financial transactions; (2) report to Congress on the role of the Internal Revenue Service in the administration of the Bank Secrecy Act; and (3) share monetary instruments transactions records upon request of a U.S. intelligence agency for use in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism.

Section 358 amends the Right to Financial Privacy Act to permit the transfer of financial records to other agencies or departments upon certification that the records are relevant to intelligence or counterintelligence activities related to international terrorism. This section also amends the Fair Credit Reporting Act to require a consumer reporting agency to furnish all information in a consumer's file to a government agency upon certification that the records are relevant to intelligence or counterintelligence activities related to international terrorism.

Section 359 subjects to mandatory records and reports on monetary instruments transactions any licensed sender of money or any other person who engages as a business in the transmission of funds, including through an informal value transfer banking system or network (e.g., hawala) of people facilitating the transfer of money domestically or internationally outside of the conventional financial institutions system.

Section 363 increases to $1 million the maximum civil penalties (currently $10,000) and criminal fines (currently $250,000) for money laundering and sets a minimum civil penalty and criminal fine of double the amount of the illegal transaction.

Section 364 amends the Federal Reserve Act to provide for uniform protection authority for Federal Reserve facilities, including law enforcement officers authorized to carry firearms and make warrantless arrests.

Section 365 amends Federal law to require reports relating to coins and currency of more than $10,000 received in a nonfinancial trade or business.
Subtitle C: Currency Crimes

Section 371 establishes as a bulk cash smuggling felony the knowing concealment and attempted transport (or transfer) across U.S. borders of currency and monetary instruments in excess of $10,000, with intent to evade specified currency reporting requirements.

Section 372 changes from discretionary to mandatory a court's authority to order, as part of a criminal sentence, forfeiture of all property involved in certain currency reporting offenses. The section leaves a court discretion to order civil forfeitures in money laundering cases.

Section 373 amends the scienter requirement of the criminal prohibition against conducting an illegal money transmitting business by removing the requirement that the defendant know that the business is illegal.

Section 374 increases the criminal penalties for counterfeiting domestic and foreign currency and obligations.

Section 375 makes a number of changes to the provisions of 18 U.S.C. §§478-480 relating to the maximum sentences for various counterfeiting offenses involving foreign obligations or securities and adds to the definition of counterfeiting in 18 U.S.C. §481 the making, acquiring, etc. of an analog, digital, or electronic image of any obligation or other security of a foreign government.

Section 376 amends the Federal criminal code to extend the prohibition against the laundering of money instruments to specified proceeds of terrorism.

Section 377 grants the United States extraterritorial jurisdiction where: (1) an offense committed outside the United States involves an access device issued, owned, managed, or controlled by a financial institution, account issuer, credit card system member, or other entity within U.S. jurisdiction; and (2) the person committing the offense transports, delivers, conveys, transfers to or through, or otherwise stores, secrets, or holds within U.S. jurisdiction any article used to assist in the commission of the offense or the proceeds of such offense or property derived from it.

Subtitle B: Enhanced Immigration Provisions
Section 411 amends the Immigration and Nationality Act to broaden the scope of aliens ineligible for admission or deportable due to terrorist activities to include an alien who: (1) is a representative of a political, social, or similar group whose political endorsement of terrorist acts undermines U.S. antiterrorist efforts; (2) has used a position of prominence to endorse terrorist activity, or to persuade others to support such activity in a way that undermines U.S. antiterrorist efforts (or the child or spouse of such an alien under specified circumstances); or (3) has been associated with a terrorist organization and intends to engage in threatening activities while in the United States.

Section 411 also includes within the definition of "terrorist activity" the use of any weapon or dangerous device.

This section defines "terrorist organization" as a group: (1) designated under the Immigration and Nationality Act or by the Secretary of State; or (2) a group of two or more individuals, whether related or not, which engages in terrorist-related activities.

Section 411 provides for the retroactive application of amendments under this Act but stipulates that an alien shall not be considered inadmissible or deportable because of a relationship to an organization that was not designated as a terrorist organization prior to enactment of this Act.

Finally, Section 411 directs the Secretary of State to notify specified congressional leaders seven days prior to designating an organization as a terrorist organization.

Section 412 provides for mandatory detention until removal from the United States (regardless of any relief from removal) of an alien certified by the Attorney General as a suspected terrorist or threat to national security. Requires release of such alien after seven days if removal proceedings have not commenced, or the alien has not been charged with a criminal offense. This section authorizes detention for additional periods of up to six months of an alien not likely to be deported in the reasonably foreseeable future only if release will threaten U.S. national security or the safety of the community or any person. This section limits any judicial review of detention decisions to habeas corpus proceedings in the U.S. Supreme Court, the U.S. Court of Appeals for the District of Columbia, or any district court with jurisdiction to entertain a habeas corpus petition. The act further restricts any appeal of a final order on detention to the U.S. Court of Appeals for the District of Columbia the right of appeal of any final order by a circuit or district judge.

TITLE V: REMOVING OBSTACLES TO INVESTIGATING TERRORISM
Like Title II, this is one of the more “controversial” areas of the Act. Title V aims to “remove obstacles to investigation,” as the name suggests, by allowing and encouraging cooperation and the sharing of information between various law enforcement and intelligence-gathering agencies.
Section 501 authorizes the Attorney General to pay rewards from available funds pursuant to public advertisements for assistance to DOJ to combat terrorism and defend the Nation against terrorist acts, in accordance with procedures and regulations established or issued by the Attorney General, subject to specified conditions, including a prohibition against any such reward of $250,000 or more from being made or offered without the personal approval of either the Attorney General or the President.

Section 502 amends the State Department Basic Authorities Act of 1956 to modify the Department of State rewards program to authorize rewards for information leading to: (1) the dismantling of a terrorist organization in whole or significant part; and (2) the identification or location of an individual who holds a key leadership position in a terrorist organization. Raises the limit on rewards if the Secretary State determines that a larger sum is necessary to combat terrorism or defend the Nation against terrorist acts.

Section 503 amends the DNA Analysis Backlog Elimination Act of 2000 to qualify a Federal terrorism offense for collection of DNA for identification.

Section 504 amends FISA to authorize consultation among Federal law enforcement officers regarding information acquired from an electronic surveillance or physical search in terrorism and related investigations or protective measures.

Section 505 allows the FBI to request telephone toll and transactional records, financial records, and consumer reports in any investigation to protect against international terrorism or clandestine intelligence activities only if the investigation is not conducted solely on the basis of activities protected by the first amendment to the U.S. Constitution.

Section 506 revises U.S. Secret Service jurisdiction with respect to fraud and related activity in connection with computers and grants the FBI primary authority to investigate specified fraud and computer related activity for cases involving espionage, foreign counter-intelligence, information protected against unauthorized disclosure for reasons of national defense or foreign relations, or restricted data, except for offenses affecting Secret Service duties.

Section 507 amends the General Education Provisions Act and the National Education Statistics Act of 1994 to provide for disclosure of educational records to the Attorney General in a terrorism investigation or prosecution.

TITLE VIII: STRENGTHENING THE CRIMINAL LAWS AGAINST TERRORISM
Section 801 amends the Federal criminal code to prohibit specific terrorist acts or otherwise destructive, disruptive, or violent acts against mass transportation vehicles, ferries, providers, employees, passengers, or operating systems.

Section 802 amends the Federal criminal code to: (1) revise the definition of "international terrorism" to include activities that appear to be intended to affect the conduct of government by mass destruction; and (2) define "domestic terrorism" as activities that occur primarily within U.S. jurisdiction, that involve criminal acts dangerous to human life, and that appear to be intended to intimidate or coerce a civilian population, to influence government policy by intimidation or coercion, or to affect government conduct by mass destruction, assassination, or kidnapping.

Section 803 prohibits harboring any person knowing or having reasonable grounds to believe that such person has committed or to be about to commit a terrorism offense.

Section 804 establishes Federal jurisdiction over crimes committed at U.S. facilities abroad.
Section 805 applies the prohibitions against providing material support for terrorism to offenses outside of the United States.

Section 806 subjects to civil forfeiture all assets, foreign or domestic, of terrorist organizations.

Section 808 expands: (1) the offenses over which the Attorney General shall have primary investigative jurisdiction under provisions governing acts of terrorism transcending national boundaries; and (2) the offenses included within the definition of the Federal crime of terrorism.

Section 809 provides that there shall be no statute of limitations for certain terrorism offenses if the commission of such an offense resulted in, or created a foreseeable risk of, death or serious bodily injury to another person.

Section 810 provides for alternative maximum penalties for specified terrorism crimes.

Section 811 makes: (1) the penalties for attempts and conspiracies the same as those for terrorism offenses; (2) the supervised release terms for offenses with terrorism predicates any term of years or life; and (3) specified terrorism crimes Racketeer Influenced and Corrupt Organizations statute predicates.

Section 812 authorizes extended period of supervised release for certain terrorism-related offenses that resulted in, or created a foreseeable risk of, death or serious bodily injury to another person.

Section 813 amends the federal RICO statute to include certain terrorism-related offenses within the definition of "racketeering activity," thus allowing multiple acts of terrorism to be charged as a pattern of racketeering for RICO purposes. This section expands the ability of prosecutors to prosecute members of established, ongoing terrorist organizations that present the threat of continuity that the RICO statute was designed to permit prosecutors to combat.

Section 814 revises prohibitions and penalties regarding fraud and related activity in connection with computers to include specified cyber-terrorism offenses.

Section 817 prescribes penalties for knowing possession in certain circumstances of biological agents, toxins, or delivery systems, especially by certain restricted persons.

TITLE X: MISCELLANEOUS
Section 1004 amends the Federal criminal code with respect to venue in money laundering cases to allow a prosecution for such an offense to be brought in: (1) any district in which the financial or monetary transaction is conducted; or (2) any district where a prosecution for the underlying specified unlawful activity could be brought, if the defendant participated in the transfer of the proceeds of the specified unlawful activity from that district to the district where the financial or monetary transaction is conducted.

Section 1004 also states that: (1) a transfer of funds from one place to another, by wire or any other means, shall constitute a single, continuing transaction; and (2) any person who conducts any portion of the transaction may be charged in any district in which the transaction takes place. This section also allows a prosecution for an attempt or conspiracy offense to be brought in the district where venue would lie for the completed offense, or in any other district where an act in furtherance of the attempt or conspiracy took place.

Section 1006 amends the Immigration and Nationality Act to make inadmissible into the United States any alien engaged in money laundering. Directs the Secretary of State to develop a money laundering watchlist which: (1) identifies individuals worldwide who are known or suspected of money laundering; and (2) is readily accessible to, and shall be checked by, a consular or other Federal official before the issuance of a visa or admission to the United States.

Conclusion
As can be seen from a review of the USA Patriot Act’s provisions, it includes broad grants of authority to law enforcement officials to undertake many actions, previously prohibited, in the name of ferreting out terrorist activity. In most situations, concerns for individual freedom and privacy have given way to concerns about security and removing any roadblocks to investigative activity concerning terrorism.
The impact of this legislation will be seen for many years and in cases totally unrelated to alleged terrorists acts. Only time will tell whether the Act will be judged a reasoned response to legitimate security concerns or an excessive grant of governmental power enacted in the wake of a horrific criminal attack on our country.

David M. Eldridge, Ritchie, Fels & Dillard, P.C., 606 W. Main St., Ste 300, P.O. Box 1126, Knoxville, TN 37901-1126, (865) 637-0661, eldridge@rfdlaw.com, http://www.rfdlaw.com

New rules regarding lesser included offense instructions
(reprinted from the November 2001 issue of the Tennessee Bar Journal)
David L. Raybin

Anew statute will take effect on Jan. 1, 2002, which will dramatically alter the procedural rules regarding lesser included offenses. Tenn. Code Ann. §40-18-110 currently requires that the judge charge all lesser included offenses without any special requests. While a party may object to an improper, lesser included offense instruction, there is no current requirement for an objection.

Chapter 338 of the Public Acts of 2001 amends Tenn. Code Ann. §40-18-110 in its entirety. Subsection (a) of the new statute codifies the definition of lesser included offenses as set forth in State v. Burns, 6 S.W. 3d 453 (Tenn. 1999). If a crime qualifies as a lesser included offense as a matter of law and is “at issue,” then the judge must instruct on this lesser offense if the party has filed a special request. Subsection (b) provides that no party is entitled to an instruction on a lesser included offense in the absence of a written request although the judge has the discretion to instruct on lesser offenses.

Subsection (c) provides that if the defendant fails to request the instruction then the instruction is waived and, absent a written request, “the failure of a trial judge to instruct the jury on any lesser included offense may not be presented as a ground for relief either in a motion for a new trial or on appeal.”

Subsection (d) of the new law provides that the judge must give the parties an opportunity to object to the proposed lesser included offense instructions. If the defendant fails to object to a lesser included offense instruction, then the defendant may not later complain in the motion for a new trial or on appeal. If the defendant does object and the judge then retracts the lesser included offense instruction, the “objection shall constitute a waiver of any objection in the motion for a new trial or on appeal concerning the failure to instruct on said lesser included offense.”
In State v. Stokes, 24 S.W. 3d 303 (Tenn. 2000) the court held that a defendant must actually consent to an amendment of an indictment if the proposed instruction may not necessarily be a lawful lesser included crime to that charged in the indictment. Subsection (e) of the new statute deals with this situation and provides that when the defendant requests an instruction on a lesser included offense “the judge may condition the instruction on the defendant’s consent to an amendment to the indictment or presentment, with the consent of the district attorney, so that if there is a conviction for the said requested lesser offense the request shall constitute a waiver of any objection in the motion for new trial and on appeal.” The statute goes on to provide that the “defendant may be required to execute a written document actually consenting to the amendment so that there may be a lawful conviction for such lesser offense.”

When the new statute goes into effect, lawyers must object to lesser included offenses which they feel should not be instructed. Failure to make an objection waives the claim. Conversely, if a party desires a lesser included offense, then a written request is mandatory. The purpose of this new statute is to avoid prior practice, which effectively made the judge act at his or her peril in charging lesser included offenses. By conditioning a lesser offense on a waiver or an actual amendment to the indictment, the new statute should actually encourage a greater number of lesser included offense instructions.

Although this statute merely regulates the procedure for instructions on lesser included offenses, there may be some question as to the constitutionality of the new statute. Recently, in State v. Ely, 48 S.W. 3d 710 (Tenn. 2001) the Tennessee Supreme Court held that lesser included offense instructions were not merely a statutory requirement. Instead, lesser included offense instructions are a matter of constitutional right. It remains to be seen how the court will resolve this controversy but, until there is some clear direction, attorneys should comply with the statute and file appropriate special requests and make the necessary objections to preserve the record for later review.

David L. Raybin is a partner with Hollins, Wagster and Yarbrough in Nashville where he concentrates in criminal trials and appeals. Raybin is the author of Tennessee Criminal Practice and Procedure (West 1984). He is also a member of the Tennessee Supreme Court Advisory Commission on Rules of Procedure. E-mail him at DRaybin@aol.com

PLEASE SEND YOUR SUGGESTIONS FOR WEB LINKS TO ADD TO THIS SECTION'S WEB PAGE, TO: Claudia Jack, District Public Defender, 22nd Judicial District, 809 S Main St Ste 200, PO Box 1735, Columbia, TN 38402. Phone: 931-380-2598 and Fax: 931-540-2451 or email her at: tdjack@djis.net

If you have questions or need information about TBA's Criminal Justice Section, you may contact: Lynn C. Pointer, Sections/Committees Coordinator, Tennessee Bar Association, 221 Fourth Avenue North. Suite 400, Nashville, TN 37219. Email: lpointer@tnbar.org
Phone: (615) 383-7421 and Fax: (615) 297-8058.
OR

Section Chair, Comer Donnell, Public Defender, 213 N Cumberland St, PO Box 888, Lebanon, TN 37087. Phone: 615-443-2771 and Fax: 615-433-2767 or email at: cldonnell@aol.com