TBA Law Blog

Posted by: Donald Paine on Mar 1, 2013

Journal Issue Date: Mar 2013

Journal Name: March 2013 - Vol. 49, No. 3

I wrote about some of these in my January/February 1990 column and in a June 2006 article. Changes since those publications mandate an update. Here it is.

Admissions by Party-Opponent Tennessee Rule of Evidence 803(1.2)(D) requires an agent’s statement to be against the agent’s interest. Federal Rule of Evidence 801(d)(2)(D) does not. Tennessee also has a category for statements by declarants in privity with the opposing party. Rule 803(1.2)(F).

Present Sense Impressions

Only federal courts recognize this exception. Rule 803(1). Over the years I reviewed failing bar examination answers, and many examinees wrote about this exception in questions about Tennessee trials. We don’t have it, folks.

Statements for Purposes of Medical Diagnosis “and” Treatment “or” Treatment

Take a look at the state and federal versions of Rule 803(4). If your client went to a doctor only for diagnosis with no treatment, that client’s statements to the doc would be admissible in federal court but inadmissible in state court. Tennessee requires that the declarant/patient seek both diagnosis “and” medical treatment; otherwise the statement isn’t trustworthy enough to merit a hearsay exception. So a one word difference — “and” versus “or” —makes all the difference.

Public Records and Reports

There are two parts of Federal Rule 803(8) not to be found in the Tennessee counterpart. The first allows police reports as evidence in civil trials. The second allows “factual findings from a legally authorized investigation.”

Statements in Ancient Documents

To be “ancient” in Tennessee, Rule 803(16) requires that the document must have existed for 30 years; federal courts define “ancient” as 20 years. Also, the Tennessee document must affect a property interest; any document will qualify in federal litigation.

Learned Treatises

The feds admit as substantive evidence statements in learned treatises, periodicals, or pamphlets. Rule 803(18). State courts allow such documents only to impeach expert witnesses.

Reputation Concerning Boundaries

Exception (20) in Tennessee Rule 803 lets in proof of boundaries by community reputation, but only if that reputation preceded the controversy and existed 30 years. Federal Rule 803(20) contains no time requirement.

Children’s Statements

Only Tennessee courts have Rule 803(26). It allows children’s statements about abuse or neglect to be considered by a judge — usually in juvenile court or in a divorce action. If the child is 13 or older and available, he or she must testify at the hearing.

Prior Inconsistent Statements of a Testifying Witness

In 1975 came Federal Rule 801(d)(1)(A), which made substantive evidence a testifying witness’s sworn inconsistent statement that was given at a trial, hearing or deposition.

In 2009 came Tennessee Rule 803(26). It makes substantive evidence a testifying witness’s inconsistent statement fitting any of three categories:

  1. recorded by audio or video,
  2. signed written statement, or
  3. sworn statement.

Statements Under Belief of Imminent Death

There is no longer a difference between federal and Tennessee dying declarations, but the 2009 Tennessee amendment conforming to the original federal language deserves mention. Now in state civil trials a dying declaration is admissible. In a criminal prosecution concerning one of two victims, the last words of either victim come in. Finally, though unlikely, the victim need not die! Rule 804(b)(2).

Statements Against Interest

Federal courts require corroboration of declarations against penal interest. Rule 804(b)(3)(B). Tennessee courts don’t.

Residual Exception

This exception is now lodged in Federal Rule 807. There is no residual exception in the Tennessee rules.

Donald 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.