TBA Law Blog

Posted by: Donald Paine on May 29, 2009

Journal Issue Date: Jun 2009

Journal Name: June 2009 - Vol. 45, No. 6

Four significant amendments take effect on July 1, 2009. First, Rule 404(a)(1) will create another avenue for the accused to open the door to admissibility of his character to prove conforming conduct.   If the accused launches an attack on the alleged victim's character for a particular trait, the prosecution in rebuttal can introduce evidence of that same trait in the accused's character.

Second, Rule 703 will contain this additional language:   "Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." Keep in mind that the expert's opinion is the admissible evidence. It can be based on reliable but inadmissible hearsay not fitting an exception. But usually the jury should not hear that hearsay.

Third, allow me to quote in full a brand new hearsay exception, Rule 803(26):

(26) Prior Inconsistent Statements of a Testifying Witness. " A statement otherwise admissible under Rule 613(b) if all of the following conditions are satisfied:

(A) The declarant must testify at the trial or hearing and be subject to cross-examination concerning the statement.       

(B) The statement must be an audio or video recorded statement, a written statement signed by the witness, or a statement given under oath.

(C) The judge must conduct a hearing outside the presence of the jury to determine by a preponderance of the evidence that the prior statement was made under circumstances indicating trustworthiness.

This rule was drafted by Commissioner Tom Thurman ("The Thurminator"), who prosecutes the worst guys and gals in Nashville. It may help place more of them behind prison walls. If so, good.

Fourth, the dying declaration hearsay exception in Rule 804(b)(2) is expanded for reasons I explained in my January 2008 article about Memphis triple murderer Stanley Puryear. No longer will the dying declarant need to be the victim of the homicide on trial. If a declarant facing imminent death is considered trustworthy, why should his statement be confined to a single trial?   Keep in mind that this is the oldest of hearsay exceptions.