TBA Law Blog

Posted by: Katharine Heriges on Aug 6, 2019
The Tennessee Supreme Court has reversed a Court of Criminal Appeals’ decision construing the actions of defense counsel in a criminal case to have caused an amendment to the indictment, thus resulting in a criminal conviction for an offense that was not an enumerated lesser-included offense of the indicted charge. The Tennessee Rule of Criminal Procedure 7(b) sets forth the manner in which an indictment can be amended after jeopardy has attached. For an indictment to be amended, “an oral or written motion to amend (the indictment) should be made, and the defendant’s oral or written consent to the motion must be clear from the record.” On the other hand, an “effective amendment” to an indictment occurs when a defendant actively seeks consideration of an otherwise invalid lesser offense. In a jury trial, mere acquiescence in a trial court’s instructing the jury on an inapplicable lesser-included offense is insufficient to cause an effective amendment to the indictment. In its unanimous opinion authored by Justice Roger Page, the court made clear that these same principles apply in a bench trial as well as in a jury trial.