A criminal defendant’s prior testimony about a particular incident is generally admissible in a retrial of the same case, even if the defendant elects not to testify on retrial. Certainly the original statement is a prior statement of the accused, not coerced or improperly obtained, as it was offered in court after being advised of the right not to testify. An exception exists, created by the U.S. Supreme Court decision in Harrison v. United States, 392 U.S. 219 (1968), for when the original testimony was offered to rebut evidence later determined to be improperly admitted. In the recent case of State v. Pottebaum, M2012-01573-CCA-R3-PC (Tenn.Crim.App. 6-21-2013), the Tennessee Court of Criminal Appeals distinguished an accused’s decision to testify to rebut evidence which should not have been admitted against him, and an accused’s decision to testify as a result of not being allowed to present certain evidence which should have been admissible.

In the Pottebaum case, the defendant’s original convictions of sex abuse offenses were reversed for some evidentiary errors by the trial court, including a decision to not allow the defense to cross examine the victim regarding prior false allegations of abuse against another individual. On retrial, the defendant elected not to testify. His prior testimony, somewhat redacted, was read into the record. The defendant later argued that his trial counsel was ineffective for not objecting to this. The defendant asserted that his prior testimony should have been inadmissible, as it had originally been offered as a result of the erroneous trial court ruling regarding the prior false abuse allegations. The defendant argued he would not have testified at the original trial but for the trial court ruling regarding the prior false allegations.

However, the Court of Criminal Appeals concluded that Pottebaum’s prior testimony was admissible, as it had not been offered originally to rebut state’s evidence improperly admitted against him. In addition, as a separate basis for rejecting the argument of ineffective assistance of counsel, the Court of Criminal Appeals determined (based upon testimony from trial counsel and from Pottebaum) that allowing the prior testimony was a tactical decision, as it allowed the defendant’s statement denying the accusations to be admitted without the defendant being subjected to further cross examination by the prosecutor.

For more information on the admissibility of prior testimony in a criminal trial, contact The Lanzon Firm.