Ethics in Criminal Cases

DAVID LOUIS RAYBIN

A. ATTORNEY-CLIENT RELATIONS

Representation is more than just A go=n to court.@
Client Awon=t do want you think he/she should@at the critical end of the case because YOU have not built a relationship at the beginning of representation.
Recognize client is under a huge amount of stress over the case. A Nothing seems to go right@ : AWell guess what else happened: I (pick one) ; lost my job; got evicted; got into a fight with my roommate; broke my leg/arm/foot/neck ; lost power in my house cause the light bill didn=t get paid ; lost my cell phone ; am get=n divorced ; and , (always my favorite) totaled my car.
Have client write you a letter about the Astory of my life.@ Client feels better and it is amazing what you learn.
Meet with client often and tell them when you will get together again.
Client NEEDS INFORMATION , send client copies of everything !!!!
Go with your client to see the probation officer!
Help your client prepare the pre-sentence report questionnaire !!!!! Tell them what verification is needed.

DEPARTMENT OF CORRECTION

Division of Probation

PERSONAL QUESTIONNAIRE AND STATEMENT

DEFENDANT: (Contact the probation officer today during working hours only at the office phone number on the attached card.)

Please complete all information on this questionnaire to the best of your ability. This investigation is to assist the court in determining your sentence and/or probationary status. Even if you are to serve your sentence(s) this investigation will assist the Department of Correction in determining where and how you will serve your sentence and to assist the Board o parole in determining when and if to grant you parole. Deliberate falsehood or misrepresentation may jeopardize your case.

_________ REFERRAL DATA – (LCLJ TID/M) Do not write in

shaded areas.

_________ Nicknames/MAIDEN NAME/ALIAS (LCLB TID//a)

Your Name

Aliases/Nicknames/Maiden Name

Date of arrest on current offense: Amount of bond:

Number of days in jail:

Arresting Officer/Agency:

_________ADDRESS/SOCIAL DATA (LCLA TID /2/m)

Marital Status: Religion:

Driver=s License # State:

Social Security Number:

County of Birth:

Current Telephone Number:

DEPARTMENT OF CORRECTION

Division of Probation

PERSONAL QUESTIONNAIRE AND STATEMENT

DEFENDANT: (Contact the probation officer today during working hours only at the office phone number on the attached card.)

Please complete all information on this questionnaire to the best of your ability. This investigation is to assist the court in determining your sentence and/or probationary status. Even if you are to serve your sentence(s) this investigation will assist the Department of Correction in determining where and how you will serve your sentence and to assist the Board of parole in determining when and if to grant you parole. Deliberate falsehood or misrepresentation may jeopardize your case.

Your Name: Michael Dewayne

Aliases/Nicknames/Maiden Name: None

Current Address: 1234 Old Hickory Blvd.

Apartment 3456

Nashville, TN 37209

Phone Number: (615) 212-1021

Attorney: David L. Raybin (retained)

Raybin & Weissman, P.C.

Suite 2200, Fifth Third Center

424 Church Street

Nashville, Tennessee 37219

(615) 256-6666 phone (615) 254-4254 fax

Case Number: 2000B

Division II, Judge Wyatt

Sentencing Hearing Date: October 6, 2000

Assistant District Attorney: John Zimmermann

Conviction Offenses: Pled guilty to twelve counts of theft

Date of arrest on current offense: June 16, 2000. Mr. Dewayne voluntarily surrendered himself on the returned indictment. Amount of bond: $2,500.00

Number of days in jail: 0

Arresting Officer/Agency: Officer Phillips/Metropolitan Police Department

_________ADDRESS/SOCIAL DATA (LCLA TID /2/m)

Marital Status: Divorced Religion: Protestant

Driver=s License # XXXXX. State: Tennessee

Social Security Number: XXXXXXX

County of Birth: Alcorn, North Carolina

Current Telephone Number: (615) 123-4566

Beginning with your current address, list your past residences going back ten (10) years.

From To Address City and State

06/99 Present XXXXXXXXX Nashville, TN 37209

05/94 06/99

**List month / day / year for each date**

__________ PHYSICAL DATA (F10 in LCLA to prompt and select Option 1)

Race: Caucasian Sex: Male Date of Birth: 04/12/72

Height: 6 ft. Weight: 260 Eye Color: Blue

Hair Color: Brown Complexion: Medium

Scars/Marks/Tatoos: None

___________ OFFICIAL VERSION (LCLK TID/PSI#)/OFFV/a)

___________ REPORT TYPE (F10 in LCLK to prompt, >RETY@ for text type

for report type

___________ CODEFENDANTS (LCLJ TID/m to enter codefendant=s TID)

___________ (F10 in LCLK to prompt, ACODS@ for text type for codefendant=s status)

List codefendants involved in this offense: None.

____ VICTIM=S STATEMENT (F10 in LCLK to prompt, AVICS@ for text type)

____ AGENCY STATEMENT (F10 in LCLK to prompt, AAGNS@ for text type)

____ PSI VICTIMS/RESTITUTION – Appendix II (LCLM TID/County # of conviction/case year/case #/Count #/ / a)

____ MITIGATING FACTORS (F10 in LCLK to prompt, AMITF@ for text type)

____ ENHANCING FACTORS (F10 in LCLK to prompt, AENHF@ for text type)

____ CRIMINAL HISTORY – Appendix III (LCLR TID/event date/ / a

____ (Prior record comments: LCLK TID/PSI#/PRRC/a

DEFENSE MITIGATING FACTORS

The defense would ask the Court to impose probation pursuant to the post-trial judicial diversion statute, T.C.A. ’40-35-313 and require that Mr. Dewayne continue in his out-patient drug treatment with the Vanderbilt psychiatrist and that Mr. Dewayne be subject to random drug screens to verify that he is drug-free.

As to mitigating factors, the defense asserts the following:

The defendant=s criminal conduct neither cause or threatened bodily injury.
The defendant assisted the authorities in uncovering offenses committed by others.
The defendant has voluntarily gone through drug treatment and is continuing to be drug free after suffering from a severe addiction to prescription medicine.

PRIOR RECORD: (Please list all past arrests/court appearances regardless of disposition, including juvenile offenses and any jails or institutions you have been in. If more room is needed, use a separate sheet).

DATE OFFENSE COURT DISPOSITION

Month/Day/Year

DO YOU HAVE CHARGES PENDING IN ANOTHER COUNTY OF STATE? Yes___ No: X

If AYes@, please explain: N/A

_____ EDUCATION (LCLE TID/a)

**List Month/Day/Year for each date listed**

Last High School Attended: Hill

Street: Unknown

NEVER tell client to meet you in court at 9 o=clock. ALWAYS tell them to be there at 8 o=clock. WRITE them about the court date. Call them a day or two ahead to remind them !!!! Do they know where the court is ?????
If they have to bring something to court have them leave it by the front door so they will bring it in the morning. A_Shoot, Ms. Jones, that paper you wanted is 1. a = sitt = n on the kitchen table, 2. in my wife = s car and she drove it to work, 3. I thought you wanted it next week @ ,and/or 4. got stolen/eaten/throwed out_.@
Tell client what to wear to court and have them lay it out the night before. A_Well Mr Arbor, I = m sorry the Judge doesn = t like my 1. tank-top, 2. flip-flops, 3. police-are-pigs tee shirt, 4. skin-tight short shorts, 5. purple moth-eaten sweater, 6. nose, lip, eyebrow ring . @ A Well that is just fine Suzie wear what you want, cause in about an hour you = ll be wearing an orange jump-suit. @_
Tell them want not to bring: cell phones, pagers, children, or Bibles
WARN THEM THAT THEY ARE SUBJECT TO URINE TESTS!!!!! And that they need to get their tail-lights fixed.
Be sure the judgment form is correct. Did they get their jail credits !!!!!
Document your file. A short pencil is better than a long memory !!!!!
Do not have too much of a relationship with your client.
Practice PROJECTIVE LAW: where will this case go? , how do I get there? ,and what will my client and I need along the way, i.e. in a drug case your client needs to be in a drug program before the sentencing hearing.

B. CLIENT FRAUD OR PERJURY

Current Rule: DR 7-102 where a lawyer knows that the client “perpetrated a fraud upon a person or tribunal, the lawyer shall promptly call upon his client to rectify same, and if the client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal except when the information is protected as a privileged communication.”
Proposed New Rule …..(( which did not pass): Rule 8, DR 7-102B(1) is hereby amended by deleting the Rule in its entirety and substituting in its place the following:

(B) A lawyer who receives information clearly establishing that:

(1) The lawyer=s client has, in the course of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal.

See Volcanic Gardens v. Paxton, 847 S.W.2d 343 (Tex. App. 1993); Bersani v. Bersani, 565 A.2d 1368 (Conn. 1989) (fraud exception).
See DR 7-102 a lawyer cannot “knowingly use perjured testimony or false evidence.”
See Newcomb v. Alaska, 651 P.2d 1176 (1982) (where a client desires to commit perjury lawyer should move to withdraw but should not reveal that client desires to commit perjury).
Nix. v. Whiteside, 106 S.Ct. 988 (1986) (extensive discussion of issue; lawyer told client he could not “change his story”; no ineffective assistance of counsel).
State v. Crenshaw, 554 A.2d 1074 (Conn. 1989) (judge denied motion to withdraw because new lawyer would have same problem).
See 64 A.L.R. 3rd 385 (for other cases).
See ABA Opinion 93-376 (attached).
See TN. Board of Professional Responsibility Opinion 93-F-133 (attached).

C. LAWYER’S “OBLIGATION” TO TURN OVER EVIDENCE TO THE STATE; THE “HOT POTATO”

Attorney-Client Privilege. See Bryan v. State, 848 S.W.2d 72 (Tenn. Cr. App. 1992) (extensive treatment of exceptions).
Disclosure of identity of client. See 16 A.L.R. 3rd 1047. See also DR7-106 (must identify client unless “privileged or irrelevant.”)
See 16 A.L.R. 3rd 1021 (generally lawyer cannot keep fruits of a crime)
People v. Belge, 83 Misc. 2d 186 (N.Y. App. 1975) (no need to tell where dead bodies are buried).
State v. Green, 493 So.2d, 1178 (La. 1986) (physical evidence, murder gun, must be turned over by lawyer, but the lawyer’s testimony about the circumstances surrounding his receipt of evidence is protected).
See People v. Meredith, 631 P.2d 46 (Cal. 1981) (lawyer removed wallet)
People v. Superior Court, 237 Cal. Rptr. 158 (1987) (tell the judge).
Attorney/client privilege does not generally apply to communication’s involving a contemplated civil fraud on the part of the client.

(a) See 31 A.L.R. 4th 459

Privilege does not apply concerning a future crime.

(a) 81 Am. Jur. 2d, Witnesses ‘208

(b) See DR 4-101(c)(3), a lawyer may reveal the “intention of his client to commit a crime and the information necessary to prevent a crime.”

D. CRIMINAL SANCTIONS ON THE LAWYER

T.C.A. ’39-16-301 (criminal impersonation)
T.C.A. ’39-16-303 (false identification)
T.C.A. ’39-16-503 (tampering with or fabricating evidence); See 40 A.L.R. 3rd 169 and State v. Forbes, 918 S.W. 2d 431 (Tenn. Cr. App. 1995)
T.C.A. ’39-16-507 (coercion of witnesses to testify falsely, withhold truthful testimony, elude legal process; “not intended to apply to attorneys who merely question a witness”).
T.C.A. ’39-16-510 (retaliation for past action of witness, judge or juror)

(a) See State v. Thomas, 813 S.W.2d 395 (Tenn. 1991) (lawyer may talk to a juror after the trial)

T.C.A. ’39-16-604 (compounding a crime; promising money to drop charges)
T.C.A. ’39-16-703 (aggravated perjury; retraction defense under T.C.A. ’39-16-704.
T.C.A. ’39-17-1306 (carrying a weapon during judicial proceedings)
T.C.A. ’39-11-411 (accessory after the fact has “no application to an attorney providing legal services as required or authorized by law.”)
T.C.A. ’39-14-142 (attorneys are not considered “debt adjusters”)
T.C.A. ’23-3-104 (criminal offense for an attorney to “divide fees” with any person not a licensed attorney)
T.C.A. ’23-3-107 (criminal offense for an attorney to violate the attorney-client privilege)

(a) Bryan v. State, 848 S.W.2d 72 (Tenn. Crim. App. 1992) (attorney-client privilege goes both ways)

T.C.A. ’40-11-149 (criminal offense for an attorney to act as a bond for his or her client “other than a member of the attorney’s immediate family”).

E. NOTICE PROVISIONS AND DISCOVERY

Taylor v. Illinois, 108 S.Ct. 646 (1988) (“In responding to discovery, the client has a duty to be candid and forthcoming with the lawyer, and when the lawyer responds, he or she speaks for the client. Putting to one side the exceptional case in which counsel is ineffective, the client must accept the consequences of the lawyer’s decision to decide not to disclose the identity of certain witnesses in advance of trial. Whenever a lawyer makes use of the sword provided by the compulsory process clause, there is some risk that he may wound his own client.”)
Exclusion of witnesses or evidence for the defense for failure to comply with notice provisions. State v. Johnson, 673 S.W. 2d 877 (Tenn. Crim. App. 1984)
Double standard; State v. Hause, 743 S.W.2d 141 (Tenn. 1987) (suppression of state’s evidence is drastic remedy and is usually imposed only where the state had clearly suppressed or destroyed evidence known to be favorable to the defendant or has displayed bad faith or deliberate misconduct in not furnishing samples to the defense).
Defense discovery obligation under Rule 16

(a) Triggered by defense request to prosecutor

(b) Triggered by obtaining items from co-defendant’s counsel which could have only been obtained pursuant to an independent discovery request. State v. Brown, 836 S.W.2d 530 (Tenn. 1992).

Time to request discovery
Method of requesting discovery: Motion vs. Letter
Defense obligation to disclose “books, papers, documents, photographs, tangible objects or portions thereof” which are in the control of the defendant and which the defendant intends to introduce as evidence in chief at trial. Rule 16(b)(1)(A) Tenn. R. Crim. P.
Defense obligation of disclosure of reports of examinations and tests. Rule 16(b)(1)(B) Tenn. R. Crim. P.

(a) State v. Bell, 690 S.W.2d 879 (Tenn. Crim. App. 1985) (even though defense lawyers did not have expert’s report, the trial judge could order the lawyer to obtain the actual report and provide it to the prosecutor)

(b) State v. Vilvaragah, 735 S.W.2d 837, (Tenn. Crim. App. 1987) (trial court could not order the defendant to turn over the psychiatric report of the defendant’s psychiatrist; at such time as the defendant decided to raise insanity, then the report must be made available to the prosecutor, and if there is a failure to do so then the defense psychiatrist may be excluded; the psychiatrist-patient privilege does not apply when the patient raises an issue concerning his mental or emotional condition; scientific and medical reports are not protected by the “work-product” rule).

Compliance with discovery

(a) Continuing duty to disclose, Rule 16(c)(Tenn R. Crim. P.)

(b) The response is only to permit the opposing party the right to “inspect and copy or photograph” Rule 16, Tenn. R. Crim. P.

(d) Party in control of requested evidence is not required to bring any evidence to the requesting party. State v. Tyson, 603 S.W.2d 748 (Tenn. Crim. App. 1980).

(e) Sanctions against defense. See 9 A.L.R. 4th 837.

In-camera inspection. Rule 16 (d)(1), Tenn. R. Crim. P.
Bill of Particulars. Obligation of state to provide on defense motion. See State v. Byrd, 820 S.W.2d 739 (Tenn. 1991).
Requested for competency evaluation.

(a) See Raybin, Section 14.3. See also State v. Lane, 689 S.W.2d 202, (Tenn. Crim. App. 1984) (Judge did not abuse discretion in denying mental examination where the proof consisted entirely of attorneys’ affidavit which was based on what the defendant told the attorney.

Notice of intention to rely on defense of insanity. Rule 12.2(a), Tenn. R. Crim. P.; not state triggered.

(a) State v. Randolph 692-S.W.2d 37 (Tenn. Crim. App. 1985) (insanity defense not allowed where pretrial notice not filed).

Notice of expert testimony of defendant’s mental condition. Rule 12.2 Tenn. R. Crim. P.; not state triggered.

(a) Notice is required for expert testimony relating to a “mental disease or defect or any other mental condition of the defendant bearing upon the issue of his guilt.” Rule 12.2(b) Tenn. R. Crim. P.

(b) State v. Russel, 735 S.W.2d 840 (Tenn. Crim. App. 1987) (trial court properly excluded psychologist’s testimony on issue of defendant’s mental health where the defense did not file a notice of its intent to introduce such evidence).

Notice of alibi Rule 12.1 Tenn. R. Crim. P.

(a) State triggered by written notice of time, date and place of offense.

(b) Written notice of alibi by defendant stating the specific place or places that the defendant claims to have been present at the time of the alleged defense and the names and addresses of the witnesses who will testify regarding the alibi.

(c) State’s response in writing indicating the names of the state witnesses who are expected to contradict the alibi witnesses.

(d) Inadmissibility of withdrawn alibi. Rule 12.1(c) Tenn. R. Crim. P.

Written notice of special request for range of punishment instruction which must be filed prior to the jury selection. T.C.A. ’40-35-201(b).
State’s obligation of notice of enhanced punishment. T.C.A. ’40-35-202(a).

(a) Defendant’s right to a continuance after the state’s filing of an untimely notice is absolute and the error in denying a continuance is not subject to harmless error. State v. Lowe, 811 S.W. 2d, 526 (Tenn. 1991).

(b) Notice for a second or subsequent violation of the same offense must be by indictment. T.C.A. ’40-35-203(e).

Advanced written notice of mitigating factors in sentencing hearing to be filed by defense. T.C.A. ’40-35-202(b)(2). Same for the state. See State v. Adams, 788 S.W.2d 557 (Tenn. 1990).
Advance notice to adverse party of request for judicial notice of federal and state rules of court, regulations of state and federal agencies, ordinances of government subdivisions, laws of foreign countries, international law, and maritime law. Rule 202, Tenn. R. Evid.
Consider requesting advance notice of “other crimes” or “wrongs” pursuant to Rule 404, Tenn. R. Evid.
Defense notice of proof victim’s prior sexual behavior ten days prior to trial. Rule 412, Tenn. R. Evid.
Obligation of the state to provide advance written notice of conduct which impeaches the defendant. Rule 608(b)(3), Tenn. R. Evid.
State’s obligation to provide notice to the defendant of evidence of conviction of crime for impeachment purpose. Rule 609, Tenn. R. Evid.
Obligation of defendant and state to provide notice of convictions against any witness where the conviction is more than ten years old. Rule 609(b), Tenn. R. Evid.
Advance notice of the contents of documents which are presented in the form of a chart, summary or calculation must be available for examination or copying by the parties at reasonable times and places. Rule 1006, Tenn. R. Evid.
Notice of defenses. There is no advance notice requirement for defenses with the exception of alibi (see above), mental conditions (see above) and the defense of entrapment under T.C.A. ’39-11-505.
Affirmative defenses require advance written notice by the defendant pursuant to T.C.A. ’39-11-204(c).

(a) Corporation criminal affirmative defense. T.C.A. ’39-11-406

(b) Carrying weapon on school property. T.C.A. ’39-17-1310

(d) Extortion affirmative offense. T.C.A. ’39-14-12(b)

(e) Obstructing highway. T.C.A. ’39-17-307(c)

(f) Renunciation affirmative defense to criminal attempt, solicitation or conspiracy. T.C.A. ’39-12-104

(g) Affirmative defense of sale or loan of pornography to a minor. T.C.A. ’39-17-911(d)

Notice for “exceptions” pursuant to T.C.A. ’39-11-202(?).
Notice of request to “lock-up” the jury (various local rules)
Request for the “rule”, effective prior to jury selection or opening statement. Rule 615, Tenn. R. Evid.

(a) See State v. Sams, 802 S.W.2d 635, (Tenn. Crim. App. 1990) (violates constitutional right to public trial to exclude persons where party has no intention of calling witness.

Opening statements, prove what you allege.

(a) State v. Zimmerman, 823 S.W.2d 220 (Tenn. Crim. App. 1991).

F. THEY WANT SOME SAMPLES OF YOUR CLIENT’S BODY PARTS?

See Raybin, ‘18.179 (fingerprints to body cavity searches; operations to remove bullets).
Request for mental examination, See Raybin, ‘14.24. See also 3 A.L.R. 3rd 410.
Examination of state’s witnesses. See State v. Barone, 852 S.W.2d 216 (Tenn. 1993).

G. BRADY OBLIGATIONS

See State v. Marshall, 854 S.W.2d 228 (Tenn. Ct. App. 1992) (the state must furnish exculpatory evidence where the evidence is “material”, the evidence is favorable to the accused, and where the defendant make a proper request for the production of the evidence).
State v. Marshall, 854 S.W.2d 228 (Tenn. Ct. App. 1992) (duty to disclose is not limited to “competent evidence” or “admissible evidence”, the duty extends to “favorable information” unknown to the accused).
State v. Taylor, 771 S.W.2d 387 (Tenn. 1989) (defendant is entitled to any evidence of mitigation possessed by the state concerning punishment)
State v. Davis, 823 S.W.2d 217 (Tenn. Crim. App. 1991) (state violated Brady in drunk driving prosecution when it failed to disclose police department memo revealing knowledge of incorrect readings or malfunctions with the machine not withstanding that the failure may have been unintentional).
United States v. Bagley, 105 S.Ct. 3375 (1985) (“impeachment evidence” falls within the Brady Rule; evidence would have been helpful in conducting cross-examination of government witness).
Consider utilizing government “open record” law to obtain police reports after conviction & direct appeal.
The government will argue that exculpatory information which is contained in “police reports” is not subject to disclosure under Rule 26.1, Tenn. R. Crim. P. dealing with “witness statements,” otherwise known as the Tennessee “Jencks” Act. Exculpatory information is not limited to only witness statements which might be governed by a separate procedural rule. Rather, the constitutional obligation to produce exculpatory information can be broader even if a “police report” is involved. See the extensive discussion in United States v. Starusko, 729 F.2d 256, 263 (3rd Cir. 1984):

Second, the government was mistaken in ignoring the district court’s Brady disclosure order because it believed that the Jencks Act was dispositive. Even if the report contained statements by Logan that could be classified properly as Jencks Act material, that does not mean that it would be exempted from a pretrial disclosure order based on Brady. All Jencks Act statements are not necessarily Brady material. The Jencks Act requires that any statement in the possession of the government – exculpatory or not – that is made by government witness must be produced by the government during trial at the time specified by the statute. Brady material is not limited to statements of witness but is defined as exculpatory material; the precise time within which the government must produce such material is not limited by specific statutory language but is governed by existing case law. Definitions of the two types of investigatory reports differ, the timing of production differs, and compliance with the statutory requirements of the Jencks Act does not necessarily satisfy the due process concerns of Brady. See Campagnuolo, 592 F.2d at 858-60; United States v. Murphy, 569 F.2d 771, 774 (3rd Cir.), cert.denied, 435 U.S. 995, 98 S.Ct. 1588, 55 L.Ed.2d 807 (1978).

H. PRODUCTION OF WITNESS STATEMENTS UNDER JENCKS; RULE 26.2, Tenn. R. Crim. P.

See State v. Caughron, 855 S.W.2d 526 (Tenn. 1993) (extensive discussion of the history and purpose of the Tennessee application of the rule); See also 5 A.L.R. 3rd 763; 7 A.L.R. 3rd 181; 1 A.L.R. Fed 252.
Rule applies to all government witnesses and all defense witnesses but not to the defendant himself or herself. Rule 26.2(a).
State v. Caughron, supra (court encourages advanced production to avoid delaying trial)
Request for production must be made after witness testifies. See State v. Wright, 618 S.W.2d 310 (Tenn. Crim. App. 1981) (motion comes too late if made after all testimony of witnesses has been completed).
Adverse party has the right to request a recess for the purpose of examination of statement. See State v. Caughron, supra (extensive discussion of time).
While the rule does not apply in general session court it does apply to pretrial motions in Criminal Court. See Rule 26.2(f), Tenn. R. Crim. P.
What is a witness “statement”? See Raybin, ‘27.227.
Sanctions for non-production, see State v. Ballard, 855 S.W.2d 557 (Tenn. 1993) (court affirms finding that the State may not use witnesses whose initial interviews were taped and intentionally destroyed by the State).
Rehabilitation following impeachment, see Rule 106, Tenn. R. Evid. which provides that when a “writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part of any other writing or recorded statement which ought in fairness, to be considered contemporaneously with it.” See also Raybin, ‘27.234.

I. Ex parte COMMUNICATIONS (Ex parte means: on one side only; by or for one party; done for, in behalf of, or on the application of, one party only).

Communication with Witnesses

(a) Lawyer deposes witness in a civil case who is represented by another lawyer but tells witness Ayour lawyer does not need to be here.@ BAD MOVE AWe conclude that DR 7‑104(A)(1) prohibits an attorney from communicating with a party the attorney knows to be represented by counsel unless permitted to do by the party’s counsel. We have further concluded that “party” as used in the Rule includes a witness who is represented by counsel. Finally, we conclude that the evidence supports the findings and conclusions of the hearing panel and chancery court that Monceret violated DR 7‑104(A)(1).@ Monceret v. Board of Professional Responsibility, 2000 WL 1029145 ( Tenn. July 27, 2000)

Judicial communications with jury.

(a) State v. Tune, 872 S.W.2d 922 (Tenn. Crim. App. 1993) (improper for the judge to communicate with jurors off the record; when such ex parte communications relate to an aspect of the trial, the trial judge should usually disclose the communication to all counsel for all parties).

b. Spencer v. A-1 Crane Service, 880 S.W.2d 938 (Tenn. 1994) (in a criminal case the state has the burden to show that the error was harmless beyond a reasonable doubt; in a non-constitutional context, the burden is on the party claiming error to show that it was not harmless; court condemns ex parte communications with a jury; leading case).

Judge’s communications with counsel.

(a) State v. Cash, 867 S.W.2d 741 (Tenn. Crim. App. 1993) (trial judge violated Rule 10, Canon 3(A)(4) of the Rules of the Supreme Court by discussing the case with the prosecutor and by investigating the case regarding matters pertaining to sentencing).

(b) Above rule prohibits a judge from initiating or considering ex parte or other communications concerning a pending or impending proceeding.

(c) State v. Jones, 735 S.W.2d 803 (Tenn. Crim. App. 1987) (judge violated Supreme Court rule by engaging in ex parte communication at the request of the prosecutor over the defendant’s objection; “moreover, in light of the professional and ethical consideration requiring all attorneys to avoid even the appearance of impropriety, we find the conduct of the prosecution in requesting an ex parte conference under these circumstances to be totally reprehensible).

(d) Canon 3(A)(4) permits a judge to obtain the advice of a disinterested expert on the law applicable to a proceeding if the judge gives notice to the parties of the person consulted and the substance of the advice and affords the parties reasonable opportunity to respond.

(e) State v. Wiseman, 643 S.W.2d 354 (Tenn. Crim. App. 1982) (it was not improper for the prosecutor to have an ex parte discussion with the trial judge requesting that the trial judge examine the jury box because there were a disproportionate number of names from outside the city; discussion related to all the jury trials before prospective jurors whose names were on the list and not the defendant’s case in particular).

Attorneys speaking with the jurors after the trial.

(a) State v. Thomas, 813 S.W.2d 395 (Tenn. 1991) (local rule prohibiting post-trial communications with the jurors except with the permission of the court is unenforceable being in violation of Rule 8 of the Tennessee Supreme Court Rules; motions for permission to interview former jurors, though not required in every case, are not inappropriate and this procedure should be encouraged in cases in which contemplated inquiry reasonably could be considered to go beyond that approved by the provisions of the Supreme Court)

(b) Federal Rule is to the contrary, Wilkerson v. Johnson, 699 F.2d 325, 330 (6th Cir. 1983) (permission required).

Attorney speaking with jury prior to or during trial is prohibited. EC-7-29. Same rule applies to a juror’s family. EC-7-31.
Lawyer’s communications with the court.

(a) All litigants and lawyers should have access to tribunals on a equal basis. Generally, in adversary proceedings a lawyer should not communicate with a judge relative to a matter pending before, or which is to be brought before, a tribunal over which he presides in circumstances which might have the effect or give the appearance of granting undue advantage to one party. For example, a lawyer should not communicate with a tribunal by a writing unless a copy thereof is promptly delivered to opposing counsel or to the adverse party if he is not represented by a lawyer. Ordinarily an oral communication by a lawyer with a judge or hearing officer should be made only upon adequate notice to opposing counsel, or if there is none, to the opposing party. A lawyer should not condone or lend himself to private importunities by another with a judge or hearing officer on behalf of himself or his client.

(b) Rule is similar in administrative proceedings pursuant to EC. 7-15.

Unless there is an emergency, neither counsel nor a party to a pending action shall contact the judge before whom the matter is pending except by letter (with copies to all parties and the clerk) or orally in the presence of other counsel of record.

Service of pleadings and motions should usually be served on all parties.

(a) Rule 5.01, Tenn. R. Civ. Proc. requires service on all parties of every written motion other than those which may be heard ex parte.

(b) Rule 6.04 Tenn. R. Civ. Proc. permits written motions to be delivered on an ex parte application where motion is filed less than five (5) days before the time specified for the hearing. Such an order “may for cause shown be made on an ex parte application.”

(c) Rule 49(a), Tenn. R. Crim. Proc. requires service on all parties of all written motions except those which are heard ex parte.

(d) Rule 45(c), Tenn. R. Crim. Proc. requires motions to be filed not later than five (5) days before the time specified for the hearing of a motion. However, for “cause shown such an order may be made on an ex parte application.”

(e) Rule 38, Tenn. R. Juv. Proc. permits protective orders on an ex parte emergency application.

Subpoenas

(a) Rule 17(b), Tenn. R. Crim. Proc. and Fed. R. Crim. Proc. permits an ex parte application to a judge for a subpoena on behalf of a defendant who is financially unable to pay the fees of a witness.

Application for indigent defendant services.

(a) T.C.A. ’40-14-207 permits an application for indigent services to be made on an ex parte application and hearing.

(b) Rule 28, of the Local Rules of Davidson County Juvenile Court sets forth the procedure for the implementation of an application for indigent defense services.

Regulation of Discovery in Criminal Cases

(a) Rule 16(d)(1) permits the Court to enter protective and modifying orders concerning discovery which may be entertained on an ex parte showing. Such matters are to be sealed so as to be made available to a higher court in the event of an appeal.

Privileged information

(a) In some instances where defense counsel is in possession of privileged information which must be disclosed, counsel might advise the court of the “hot potato.” People v. Superior Court, 237 Cal. Rptr. 158 (1987).

Limitations concerning ex parte communications in administrative proceedings. T.C.A. ‘4-5-304 and T.C.A. ‘4-5-319.13. Settlement Conferences

(a) statements for the Settlement Judge in civil cases.

(b) No judicial participation in criminal plea bargaining. Rule 11(e)(1), Tenn. R. Crim. P.; Rule 11(e)(1), Fed. R. Crim. P.

Other Exceptions

(a) T.C.A. ’36-3-611 prohibits the enforcement of an ex parte order of protection unless the respondent has been served with the order of protection or otherwise has acquired actual knowledge.

(b) Orders of protection may be obtained ex parte. T.C.A. ’36-3-601.

(c) T.C.A. ’39-13-604 permits a judge of a court of record having domestic relations jurisdiction to authorize any individual to intercept or record a communication on a cordless telephone upon an ex parte showing that there is probable cause to believe that the health, safety and welfare of a minor is in jeopardy.

(d) T.C.A. ’39-17-905 permits ex parte temporary restraining orders dealing with the seizure of obscene material.

(e) T.C.A. ’40-6-304 permits ex parte applications for a warrant for electronic surveillance.

(f) Arrest warrants and search warrants are normally obtained ex parte.

END OF PAPER !!!!!!!!!!!!!!

Copyright is retained by David Louis Raybin except that non-commercial, not-for-profit organizations may distribute same to members.