As I continue to determine what direction this blog should take., I am going to add a new category. The Tennessee Criminal Law Dictionary.

What is a Plea Bargain ?

A plea bargain is the process where the District Attorney and the lawyer for the accused tries to work out an agreement to settle the criminal charge.It usually involves the accused pleading to a lessor crime or a reduced jail sentence.Plea bargaining is governed by Rule 11 of the Tennessee Rules of Criminal Procedure.

Note. As a friendly reminder for my prosecuting attorney friends who may read the blog. I would like to remind everyone that a plea bargain means plea equals bargain.

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A  Tennessee child sex allegation or a child abuse allegation usually starts with a visitor from the Tennessee Department of Children's Services followed by a visit from the police. The DCS investigator must follow a CPS investigation checklist which includes calling the District Attorney's office upon a report of severe abuse or sexual abuse allegations. Here's a short video on how to deal with the knock at the door by a  Tennessee Department of Children Services investigator.

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Another misconception about drunk driving cases are they are just like any other criminal case.Here's an example. In the normal first degree murder case , the State of Tennessee will have the police do an in depth crime scene investigation. The, the assistant district attorney may order ballistics tests , blood splatter patterns and collect other forensic evidence. All that evidence is collected and subject independent analysis.

In  Tennessee DUI cases , a independent breath sample can be captured but it is not done nor does Tennessee law require it. Most DUI arrests aren't video taped to preserve the evidence of the field sobriety tests

Some criminal defense lawyers don't take the DUI cases seriously. It's just a misdemeanor right. Wrong. Tennessee passes tougher DUI laws every year.It's no longer a minor crime.

Here's what a DUI lawyer must be know:

1. Search and Seizure Law
2. The Science of Field Sobriety Tests
3. The Science of Alcohol Consumption
4. The Science of Blood and Breath Alcohol Analysis

So , lawyers must take these cases seriously. These four topics should be asked of your DUI lawyer.

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I had a question posted by someone on the expungement process in Tennessee. The question is " In expunging you record with multiple jurisdictions do you have to go to each individual courthouse". The answer is you must go to each county in which the criminal charge was filed to complete the expungement procedure. I re-posted the video on " How to Expunge Your Record in Tennessee ". Also , I have created some videos on various issues in the area of DUI and criminal defense on You Tube.

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The fall out from the erased DUI video tapes by the Nashville, Tennessee police department continue.  Attorney David Brandon was the first attorney to discover the erased tapes.  I congratulate him for discovering what had happened.  However, I think everyone needs to be aware that the erased DUI tapes are not a get out of jail free card.  It is merely one key piece of evidence that is not available.  In court this week, I saw how not to use the loss of evidence.

Here is the key. Destruction of evidence may not require an automatic dismissal unless a criminal defendant can show bad faith on the part of police.  Failure to preserve potentially useful evidence does not constitute a denial of due process of law.  See Arizona v. Youngblood.

A number of states have not followed Youngblood because of the unfairness or requiring the accused to prove bad faith or that the evidence would in fact be favorable.  Tennessee rejects the Youngblood "bad faith" analysis.  Instead Tennessee adopted a "fair trial" analysis. See State v. Ferguson jury instruction.

So, my advice is to use the loss of the video tape to drive favorable plea discussions.  When the facts are great anyway, then ask the court for the Ferguson jury instruction at trial.

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As I was driving back from a preliminary hearing on a drug interdiction case in Rutherford County general Sessions court , I needed to grab a bite before going back to the office. So , I thought about an old favorite Tex"s Barbecue on Foster Avenue in Nashville. I had not been there in awhile but I was in for a surprise.Thursday' is rib day.

Three huge beef ribs. The ribs had a great smoke ring and were tender as can be. Followed by the  side buffet with a ton of choices of vegetables. My favorite is always the deviled eggs. Peach and blackberry cobbler were on the menu as well , but I am trying to watch the sweets. Check out Tex's for some western style BBQ.

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 The federal courts are split over whether the police must obtain a search warrant before secretly attaching a Global Positiong System device under someone's car.  The issue is whether the Fourth Amendment of the U.S. Constitution's protection against unreasonable searches and seizures covers a device that records a suspect's movements for days, weeks, or months without any need for a police officer or drug task force agent to follow the suspect.  Traditionally, the courts have held that the Fourth amendment does not cover the trailing of a suspect because a citizen has no expectations of privacy for actions exposed to public view.

With the explosion of technology to track someone's movement by GPS or cell phone, how do the court's apply Fourth Amendment privacy rights in the 21st century?

The D.C. Circuit held on August 6 , 2010  that a warrant is needed for prolonged GPS surveillance, recognizing People v. Weaver from New York and limiting Knotts. [This is a highly important decision. Every criminal and constitutional lawyer needs to read it.] United States v. Maynard, 2010 U.S. App. LEXIS 16417 (D.C.Cir. August 6, 2010): Thanks to the Fourth Amendment for this clip. Here is the full commenatary on this case.

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Labor day is fast approaching which signals the end of the boating season here in Tennessee. I was reminded of the increased  BUI enforcement of  Old Hickory Lake and Percy Priest Lake by my boating friends. It's reported that the Tennessee Wildlife Resource officers are making safety inspections all over both lakes in an effort to detect boaters under the influence. So here is a new article on" Boating Under the Influence" which I just added to my website.

Summer is almost over which means it's almost football time in Tennessee.

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Last week  I spoke at a webcast for the Tennessee Bar Association on bail bond issues in Tennessee criminal cases.There  were two main topics that were addressed. First , the new bail bond laws on DUI cases in which the defendant is charged with a second offense or greater. Secondly , factors the court must consider when setting or reducing an excessive bail bond. Tennessee Code Annotated 40-11-118 sets forth the factors . I created a short video on reducing an excessive bail bond.

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Here's an update on the 1300 DUI videos that were destroyed.  At first Metro Nashville Police blamed ICOP Digital stating the software had a flawed update.  Brian Haas of The Tennessean reported today on the company's response.  Here is a copy of the letter that was sent to Metro Police Chief Steve Anderson.  You can read the whole letter but here is the gist of ICOP 's position.

The loss of any files was not the result of ICOP’s action, but the result of your personnel and/or operating procedures.

ICOP blames Metro Nashville Police in it's open letter to Chief Anderson. While Metro Nashville Police blame ICOP. Here's Nashville police department's news release on the subject. It looks like a lawsuit waiting to happen.

What does this mean if you have a drunk driving case (DUI) pending in Nashville,Tennessee?  First, the police have a duty to preserve exculpatory evidence in all criminal cases. The question then becomes whether the destruction was negligent or intentional.  In Arizona v Youngblood, The United States Supreme Court held that the government's failure to preserve evidence only violates due process if the the defendant can show the government acted in bad faith.  Tennessee has embraced this principle in State v. Ferguson which held in part....

 If the proof demonstrates the existence of a duty to preserve and further shows that the State has failed in that duty, the analysis moves to a consideration of several factors which should guide the decision regarding the consequences of the breach.   Those factors include:

1.  The degree of negligence involved;

2. The significance of the destroyed evidence, considered in light of the probative value and reliability of secondary or substitute evidence that remains available;  and

3.  The sufficiency of the other evidence used at trial to support the conviction

So, while the loss of the DUI videos does not automatically mean a dismissal, it does give you some great leverage in handling your case.

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I have a trial set for Monday. While  I was working on the case today, I got the call with a plea bargain offer. The call made me hit the books just to verify my client is good to go for probation. Last year , The Tennessee Supreme Court found a lawyer was ineffective for telling his client  that he was eligible for probation when he was not. So , I reread Tennessee Code Annotated 40-35-303 to just make sure and I was right. However , I thought the information in the statute was worth repeating.

Tennessee Code Annotated 40-35-303 provides in part..... A defendant shall be eligible for probation under this chapter if the sentence imposed is Ten years or less. However , no defendant shall be eligible for probation if convicted of the following offenses:

                                List of Crimes Not Eligible For Probation Under Tennessee Law

1. Aggravated Kidnapping
2. Aggravated Robbery
3. Aggravated Sexual Battery
4. Statutory Rape By An Authority Figure
5. Aggravated Child Abuse and Neglect
6. Possession of Schedule I Drugs
7. Sexual Exploitation of a Minor
8. Aggravated Sexual Exploitation of a Minor
9. Especially Aggravated Exploitation of a Minor.

Here's the list. Before , you accept a plea bargain . Know the consequences of the plea.

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Identifying who committed the crime is one element of proof in most criminal cases. There are several different methods of identification. First , the person knows the accused. Second , the police may use a lineup or show up to identify a defendant, Third , the defendant may be identified in open court by the alleged victim. Recent statistics from the Innocence Project illustrate this problem.

Eyewitness Misidentification

Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing.

While eyewitness testimony can be persuasive evidence before a judge or jury, 30 years of strong social science research has proven that eyewitness identification is often unreliable. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.

How do Tennessee court's instruct on identification problems at trial ? The following is from the Tennessee Pattern Jury Instructions on identification;

One of the issues in this case is the identification of the defendant as the person who committed the crime. The state has the burden of proving identity beyond a reasonable doubt. Identification testimony is an expression of belief or impression by the witness, and its value may depend upon your consideration of several factors. Some of the factors which you may consider are:

(1) The witness' capacity and opportunity to observe the offender. This includes, among other things, the length of time available for observation, the distance from which the witness observed, the lighting, and whether the person who committed the crime was a prior acquaintance of the witness;

(2) The degree of certainty expressed by the witness regarding the identification and the circumstances under which it was made, including whether it is the product of the witness' own recollection;

(3) The occasions, if any, on which the witness failed to make an identification of the defendant, or made an identification that was inconsistent with the identification at trial; and

(4) The occasions, if any, on which the witness made an identification that was consistent with the identification at trial, and the circumstances surrounding such identifications.

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Tennessee 's new bail bond laws on DUI second offenses and greater goes into effect on January 1 , 2011. Tomorrow , I am presenting a webinar for the Tennessee Bar Association on the new DUI bail bond laws as well as tips on how to lower a bail bond. I will be answering questions on the topic during the webinar.

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   A faulty software update erased 1300 Nashville DUI arrests.  Metro Nashville Police report that the videos that were erased  were from October 2009 until April 2010. All of Nashville's DUI unit  police officers have a video in their patrol car. The purpose of the video is to record the field sobriety tests and the observation period before a breath alcohol test is given. What does this mean for those with a destroyed DUI video ?

Loss or destruction of evidence is a big issue in any criminal case. The police have a duty to preserve the evidence they collect. In this case , the videos have been lost forever. It gives the defendant some bargaining power in getting their cases either reduced to a reckless driving or a special jury charge if the case goes to trial. Bottom line is that the loss of the video tapes gives them a solid legal defense.Here's what a Nashville General Sessions Judge had to say about the issue.

 

"It's a fairly significant piece of evidence obviously," said presiding General Sessions Judge Dan Eisenstein. 

The judge said video evidence can play a key role in all types of criminal cases.

"It's highly unusual. It doesn't happen everyday," said Eisenstein.

It is my understanding the loss of the DUI videos was discovered in court on 8-3-2010 . Judge Eisenstein made inquiries after a defense lawyer asked about getting the DUI arrest videos.

Here's the questions that need to be answered in light of the disclosure of the destruction of the DUI videos;

1. When did the Metro Nashville Police Department learn of the destruction of the DUI video tapes ?
2. When did the District Attorney's office learn of the problem ?

Surely , the police knew or should have known about the loss of the videos before this week. Remember , some videos were lost as long ago as October.Stay tuned for how this story plays out.

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A disbarred Gallatin , Tennessee criminal defense lawyer who was found guilty of smuggling drugs into the Sumner County jail has lost her appeal for judicial diversion in the Tennessee Court of Criminal Appeals. Jocelyn Mimms was convicted of conspiracy and attempt to introduce contraband into a penal facility. Ms.Mimms was sentenced to serve two years in jail. She appealed her denial of judicial diversion by the trial court .

Tennessee code Annotated 40-35-313 provides that a qualified defendant may be placed on judicial diversion. After the period of probation , The defendant can petition the court to have his or hr criminal record expunged. Judicial diversion is one of the great tools a Tennessee criminal defense attorney has at their disposal to avoid a permanent conviction on a client's criminal record. The trial court based it's decision on the facts  that Ms. Mimms had not accepted responsibility for her actions and that she abused her position of trust.  The Tennessee Court of Criminal Appeals affirmed the trial court and denied her application for judicial diverison.

There are three key points in the case  for criminal defense attorneys.

1. Do not talk on the phone from jail or prison. Ms Mimms , A Vanderbilt Law School graduate , spoke on the jailhouse phone detailing the drug deals. Stupid. There is an an announcement that all calls are recorded. Jailhouse calls are routinely used in criminal trials that they were used here.
2. A criminal defense lawyer should not date their client who is in Jail. The ethical rules forbid it and you could wind up in jail.
3. Judicial diversion is a great tool to avoid a criminal conviction in Tennessee. It is one tool that a Tennessee criminal defense attorney should keep in his get out of jail file.

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Just who is a domestic violence victim?  Well, the Tennessee State Legislature defines who is a domestic violence victim by statute.  I am glad it is defined because it eliminates any debate. Here's the definition straight from the Tennessee Code.

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Several years ago the Tennessee State Legislature enacted the Drug Free School Zone Act.  The purpose was to prevent drug trafficking at or near our schools.  I agree wholeheartedly that schools should be a place of learning and not a breeding ground for drug sales to children.  However, the police and the District Attorneys Office uses the school zone act as a hammer in the war on drugs.  Now, driving though a school zone triggers the enhanced punishment portion of the drug free school zone act.  A school zone drug charge increases the punishment and makes the service of the sentence at 100 % to serve. Watch the video to see how just driving down Charlotte Avenue in Nashville, Tennessee can impact a case.

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Brian Haas of The Tennessean wrote a story about the proposed  $15 million dollar crime lab project may have to be scaled back. The real question he should answer is why does The Nashville Metropolitan Police Department need a crime lab.  First, the cost is $15 million when the Tennessee Bureau Of Investigation has a forensic lab right here in Davidson County.  Second, I would suggest reading the National Academy Of Sciences Report  " Strengthening Forensic Sciences, A Path Forward". The report is a detailed study into many complex problems with forensic science labs.

A major problem noted in the National Academy of Sciences report is that crime labs are often part of the law enforcement agencies, as opposed to independent agencies. The implication is that the possibility exists for bias, no matter how unintentional, toward the prosecution.  In Nashville, the crime lab was strongly supported by former Chief of Police Serpas who is now being audited for alleged false crime statistics.  Nashville has already had some problems when they created a ballistics department.  For good science Nashville needs an independent forensic crime lab, not merely a rubber stamp. Plus, the city saves $15 million.

Who shall guard the guardians comes to mind.

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