Rule 5

Comment from Appellate Practice Section Chair

The appellate practice group strives to keep its members advised of changes in the law and also proposed changes in the law. On Sept. 25, 2017, the Tennessee Supreme Court filed proposed amendments to the Tennessee Rules of Procedure and Evidence. One of the proposed amendments was to Rule 5 of the Tennessee Rules of Criminal Procedure. The Appellate Practice Section recommended to the Board of Governors that this rules amendment be rejected by the court. The proposed amendment would have increased from 10 days to 14 days the minimum time for a preliminary hearing to be held in the trial court. This recommendation was accepted by the Tennessee Bar Association Board of Governors and the issue is currently before the Court.
The appellate practice group also weighed in on a proposed amendment to Rule 16 to the Tennessee Rules of Criminal Procedure. This proposal would have required counsel and their expert for a criminal defendant in a child pornography case to examine the evidence of child pornography in the offices of state’s counsel. Because this provision would have significantly impaired the ability of a defense expert to analyze the evidence in the expert’s own lab with the expert's specialized equipment, the appellate practice group recommended rejection of that rule amendment and the Board of Governors accepted that recommendation as well. The precise recommendation was that the rule should be rewritten or a subsection inserted that defines defense expert and assures reasonable access under the supervision of state officials.
Both of the amendments present issues upon which reasonable minds can differ. The vote on the appellate practice group executive council was not unanimous on either of these issues. All practitioners are encouraged to file their own personal comments on any of the rules with the court. There have been many examples in recent history where a comment filed by one lawyer has made the difference in the language ultimately adopted by the court.
George "Buck" Lewis is a shareholder at Baker Donelson, former TBA president and chairs the Appellate Practice Law Section. Buck can be contacted by email or by phone at 901-577-2256.
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