I am about to finish my second and final term as a member of the Board of Professional Responsibility.

When Justice Clark called six years ago, I didn’t know why she was calling. I remember exactly how the conversation went:

Justice Clark: This may be one of those calls you regret taking.
WD: Well, when you get a call from someone whose first name is ‘Justice,’ the answer is going to be ‘yes.’

Recently I was driving to Nashville with my family. A car ahead was smoking and dropping some sort of brightly flaming material at  regular intervals on the interstate. I called 911 (as had others). I don’t know whether the driver was violating any criminal laws, but I’m pretty sure it would have been reasonable for an officer to blue light the car and check on the safety of the driver. (We later saw the car engulfed in flames as the driver jumped out and let the car roll backwards off of an exit ramp).

The hearsay exception for public records could win the prize for the most underutilized evidence rule in criminal cases. Rule 803(8) is also a rule where the differences between the state and federal rule could change the outcome. In criminal cases, both the state and federal versions of the rule allow prosecutors and defense counsel to offer a variety of records created by an agency for the truth of the matters asserted in the records.

There are just some cases that should never make it to trial. One often hears that there is no such thing as a motion for summary judgment in a criminal case. True, but it is wrong to conclude that trial courts lack authority to dismiss indictments if they have to rely on facts beyond the four corners of the indictment. It has never been disputed that a trial court has the authority to dismiss an indictment when a defect is apparent on its face.

Imagine you are serving on a jury in a serious criminal case. The issue is identity. The crime is horrible, but the defendant strongly denies committing the crime. Wouldn’t you feel better if the state could produce forensic evidence linking this defendant to the crime scene — or perhaps a strand of the victim’s hair in the defendant’s car?

The Tennessee General Assembly has passed a number of new statutes to preserve personal privacy as technology continues to intersect with criminal law.

A. Drones.

The Tennessee General Assembly took an early interest in the criminal law implications of the use of drones.[1] In 2013, the legislature passed the “Freedom from Unwarranted Surveillance Act.”[2] The Act prohibits any law enforcement agency using a drone to gather evidence.[3] The Act, which passed the Senate unanimously, was patterned after a Florida Statute.[4]

The doctrine sometimes called “diminished capacity” still seems to be confusing to practitioners and trial judges. I’d like to review the concept and offer some pointers on how defense counsel can develop relevant and admissible expert testimony regarding the mental state of the accused and how prosecutors can challenge such evidence.

Let’s say you are a sales representative marketing medical supplies for a well-known corporation. Now imagine that the government begins an investigation of whether some of the medical devices you’ve sold were stolen. The assistant United States attorney takes the case to a federal grand jury, which hears only the witnesses the prosecutor calls, and obtains an indictment. Luckily for you, you are one of those defendants who can afford to retain counsel of your choice because of the money you have made in business. Right? Wrong.

When can police enter a home without a warrant? This question presents the rare convergence of a classic law school issue with real life. Officers are required to make quick decisions about whether they can enter a residence or whether they must obtain a warrant. As with many Fourth Amendment issues, the touchstone is reasonableness.

Do exigent circumstances make warrantless entry reasonable? A pair of recent cases — one from Tennessee and the other from the Sixth Circuit — help flesh out the contours of the exigent circumstances doctrine.

Major Policy Changes on Mandatory Minimum Sentences in Federal Court: Those of you who practice in federal court know the power of mandatory minimum sentences imposed by Congress. Even for fairly low-level drug offenders, mandatory sentences can easily require service of five or 10 years, and prior convictions (even for probated state offenses) can boost the sentence to life.[1]