Generally, hearsay statements, which are extrajudicial assertions of testimonial facts, are not admissible in criminal trials in Tennessee. However, the Rules of Evidence provide specific exceptions and indicate other exceptions could apply as well. In 2009, the Tennessee Legislature passed a law specifically allowing for the admission into evidence of relevant video hearsay statements of children under the age of thirteen when the statements describe sex abuse and when, in the judgment of the trial court, a list of criteria is met which is designed to ensure the reliability of the statements. In the recent case of State v. McCoy, M2013-00912-SC-R11-CD (Tenn. 12-1-2014), the Tennessee Supreme Court addressed constitutional challenges to this evidentiary statute and approved its constitutionality and application.

In the McCoy case, the trial court, though finding the provisions of the statute sufficiently met to allow into evidence a video recorded statement of a child witness, excluded the evidence due to constitutional concerns, including a conclusion that, as an act of the state legislature, it intruded into the Supreme Court’s role of determining rules of evidence in judicial proceedings.

The State sought an interlocutory appeal, which was denied by the Court of Criminal Appeals, but then granted by the Supreme Court. The Court addressed three primary arguments against the application of the statute. First, the Court considered whether the statute violated constitutional separation of powers. Second was the question of whether the statute conflicted with existing rules of evidence. Third was the question of whether it violated a defendant’s right to confront witnesses.

Though determining rules of evidence in court is generally a judicial role and not a legislative one, the Tennessee Supreme Court has recognized legislatively enacted rules of evidence which could work within the framework of existing rules and did not conflict with rules of the Court. In this case, the Court determined that the provisions to ensure reliability and discretion of the trial court fit within the framework of existing rules and procedure. Other provisions allow reliable hearsay under various circumstances and the hearsay rule recognizes there may be exceptions not included in the rule. Because the rule recognizes the possibility of exceptions created by other legal provisions, the statute at issue does not conflict with it.

Finally, it does not violate the right of confrontation because the statute itself requires the declarant to be present and testify. So the declarant is subject to cross-examination in the same proceeding in which the video recording is also used. It is important to note that the video recording evidence is evidence supplemental to the child’s in-court testimony. It is not a substitute for it.

For more information on when hearsay evidence may be admissible in a criminal case, contact The Lanzon Firm.