I have never figured out who reads this blog. I think mostly criminal defense lawyers and a few prosecutors. In that vein, I am starting a new feature that will be posted on Mondays. It will be the criminal law tip of the week. I just hope I have a tip each week.
My first tip is procedural questions during a motion to suppress evidence. Sometimes you need to put your client on the witness on the stand to prove some fact. Some trial judges believe that the defendant/client needs to testify in certain cases to rebut the police officer’s testimony .
For example, how does one rebut testimony of serving without a video? The answer is simple, put the client or other folks in the car to rebut the officer’s testimony. How do you protect your client from testifying about other issues?
Rule 104(d) of the Tennessee Rules of Evidence provides as follows: "The accused does not by testifying upon a preliminary matter become subject to cross-examination as to other issues in the case." The accused can testify as to the traffic stop or other matters. Warning: Operate with extreme care if you put a client on at a bond hearing. One of the factors is the likelihood of conviction. It might be fair game for an inquiry by the prosecutor. I very rarely, if ever, put a client on the stand for a bond reduction hearing.
Further, the pre-trial testimony cannot be used at trial according to Tennessee case law. Whether the testimony can be used for impeachment purposes is not clear.
The takeaway point is consider putting the accused on the witness stand for search warrant issues, traffic stops and other matters without the risk of exposing your client to the risk of a wide open cross-examination.