Category Archives: Criminal Procedure

No, the Double Jeopardy Clause does not prevent re-trial in the Vanderbilt rape case.

Constitutional Law, Criminal Procedure, , , , ,

By Daniel A. Horwitz

Yesterday, Judge Monte Watkins declared a mistrial in the consolidated prosecutions of Cory Batey and Brandon Vandenburg, which have come to be known collectively as “the Vanderbilt rape case.”  Judge Watkins’ eight-page mistrial order is accessible here.  As explained in detail in this post from last week, Tennessee law presumes jurors to be biased when they give false statements or fail to be forthcoming in response to questions asked during jury selection, and under such circumstances, a new trial is appropriate regardless of the strength of the evidence that was presented.   In this case, the juror in question appears to have lied several times in response to a wide array of questions that he was asked during voir dire.  For example, in page six of Judge Watkins’ ruling, he explains: “[I]t would be difficult to believe that Juror #9 did not [recall] his involvement in a statutory rape case when sexual assault, rape, and unwanted sexual touching [were] mentioned over one hundred and four times during the course of voir dire.”

Following Judge Watkins’ mistrial declaration, several observers have inquired whether the Double Jeopardy clause of the Fifth Amendment prohibits the government from re-trying the two defendants.  It does not.  According to the U.S. Supreme Court, barring bad-faith or prosecutorial misconduct, “a mistrial ruling explicitly contemplates reprosecution of the defendant.”  United States v. Jorn, 400 U.S. 470, 476 (1971).  As the Supreme Court has explained: Continue reading No, the Double Jeopardy Clause does not prevent re-trial in the Vanderbilt rape case. →

SCOTUS Decision Day Roundup: A Criminal Justice and First Amendment Jubilee

Constitutional Law, Criminal Procedure, First Amendment, SCOTUS, ,

By Daniel A. Horwitz

The Supreme Court of the United States issued six opinions today, several of which may affect the development of Tennessee law or pending Tennessee cases.  The day’s opinions were largely centered on criminal justice and first amendment issues, and their holdings were as follows: Continue reading SCOTUS Decision Day Roundup: A Criminal Justice and First Amendment Jubilee →

Tennessee Supreme Court Holds that a Witness’s Claim of Memory Loss Concerning Prior Statements Can Trigger Hearsay Exceptions and that Inconsistent Verdicts Are Acceptable

Criminal Procedure, Evidence, ,

Guest Post by Memphis Attorney Neil Umsted

A witness’ claimed lack of memory at trial, whether legitimate or feigned, will trigger a number of rules that can allow that witness’ prior statements to be introduced as substantive evidence, the Tennessee Supreme Court held in State v. Marlo Davis, W2011-01548-SC-R11-CD.  Moreover, the Court held that so-called “inconsistent verdicts” will not, standing alone, entitle a defendant to any relief.

Marlo Davis was indicted along with a co-defendant for felony murder and premeditated murder—alternative theories of guilt for the homicide of a single victim. At trial, one of the State’s key witnesses, Jarcquise Spencer, testified that he did not recall witnessing the shooting, that he did not recall identifying the Defendant as the shooter in a statement to police, and that he did not recall testifying at the preliminary hearing in the case.  The trial court, convinced that Spencer was feigning his memory loss, allowed the State to introduce Spencer’s prior statements and prior testimony as proof of the defendant’s guilt.

Continue reading Tennessee Supreme Court Holds that a Witness’s Claim of Memory Loss Concerning Prior Statements Can Trigger Hearsay Exceptions and that Inconsistent Verdicts Are Acceptable →

Juror Bias Under Tennessee Law, and What to Expect in the Vanderbilt Rape Case

Criminal Procedure, , , ,

By Daniel A. Horwitz

[Disclosure:  In a directly related lawsuit, the author filed an amici curiae brief in the Tennessee Supreme Court on behalf of several domestic and sexual violence prevention advocates seeking to protect the private records of the victim in this case.  The author’s brief – which applied only to the civil public records request filed in connection with this case by The Tennessean on behalf of a larger media coalition – is accessible here.]

In Sunday’s Tennessean, Stacey Barchenger provides answers to several questions involving post-trial criminal procedure in the consolidated prosecutions of Cory Batey and Brandon Vandenburg, which have come to be known collectively as “the Vanderbilt rape case.”[1]  Many of the questions that Ms. Barchenger answers in her column concern the alleged biases of one of the jurors who decided the case.  As reported by ABC News, Mr. Todd Easter – who served as the jury’s foreman – was “a victim of statutory rape 15 years ago, . . . but [he] never revealed that information during the jury selection process.”[2]  According to The Tennessean’s reporting, one of the specific questions that Mr. Easter was asked during jury selection was whether he “knew any victims of sexual assault.”[3]

Co-defendants Batey and Vandenburg have both argued that they are entitled to a new trial because Mr. Easter was biased against them but failed to disclose his biases during voir dire (jury selection).  In her article, Ms. Barchenger correctly explains that “[i]f the judge [agrees that] the juror should have disclosed the [fact that he had been raped],” then the judge will “grant a mistrial and set a new trial date.”  On Monday, the parties held an extensive evidentiary hearing concerning Mr. Easter’s potential biases, which will assist the trial court in ruling on the defendants’ motions.

This article attempts to provide a detailed summary of the legal questions that Criminal Court Judge Monte Watkins will have to answer in determining what exactly Mr. Easter “should have disclosed” during jury selection, and whether Mr. Easter was legally biased against the two co-defendants.  Additionally, assuming that Judge Watkins finds that Mr. Easter was indeed biased, this article explains why Mr. Batey and Mr. Vandenburg are entitled to receive a new trial—even though the evidence against them can fairly be characterized as overwhelming.  Continue reading Juror Bias Under Tennessee Law, and What to Expect in the Vanderbilt Rape Case →

Tennessee Supreme Court holds that recorded forensic interviews in child sex cases are subject to evidentiary constraints on admitting prior consistent statements, reaffirms rule regarding offers of proof, and breathes life into cumulative error doctrine.

Criminal Procedure, , , , ,

By Daniel A. Horwitz

[Disclosure:  The author filed an Amicus Curiae brief in the case discussed below on behalf of the Tennessee Association of Criminal Defense Lawyers (TACDL).  The author’s brief — which primarily addressed the issue discussed in Section B, below — is accessible here.]

Forensic interviews in child sex cases generally are not admissible as substantive evidence in criminal trials, the Supreme Court of Tennessee held in a much-overlooked but vitally important criminal procedure case.  According to the Court’s unanimous opinion in State v. Herron, No. W2012–01195–SC–R11–CD, 2015 WL 1361262 (Tenn. Mar. 26, 2015), forensic interviews in child sex cases are subject to the same evidentiary constraints that generally prohibit admitting “prior consistent statements” during criminal and civil trials.

Furthermore, the Tennessee Supreme Court’s opinion in Herron reaffirms the Court’s prior ruling in State v. Galmore that a defendant generally “is not required to make an offer of proof” in order to prove on appeal that a trial court’s erroneous, adverse ruling on impeachment evidence affected the outcome of his trial.  See State v. Galmore, 994 S.W.2d 120, 125 (Tenn. 1999).

Additionally, by granting the defendant in Herron a new trial on the basis of the combined effect of two separate trial errors, the Court’s decision in Herron has breathed life into the oft-ignored “cumulative error doctrine,” which “embodies the idea that a multiplicity of errors—though individually harmless—may in the aggregate violate a defendant’s due process right to a fair trial.”  State v. Clark, 452 S.W.3d 268, 299 (Tenn. 2014). Continue reading Tennessee Supreme Court holds that recorded forensic interviews in child sex cases are subject to evidentiary constraints on admitting prior consistent statements, reaffirms rule regarding offers of proof, and breathes life into cumulative error doctrine. →