Tennessee Rules of Criminal Procedure, Rule 26.2 PRODUCTION OF STATEMENTS OF WITNESSES

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Tennessee Rules of Criminal Procedure, Rule 26.2

RULE 26.2 PRODUCTION OF STATEMENTS OF WITNESSES

(a) Motion for Production. After a witness other than the defendant has testified on direct examination, the trial court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and the defendant's attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.

(b) Production of Entire Statement. If the entire contents of the statement relate to the subject matter concerning which the witness has testified, the court shall order that the statement be delivered to the moving party.

(c) Production of Excised Statement. If the other party claims that the statement contains matter that does not relate to the subject matter concerning which the witness has testified, the court shall order that it be delivered to the court in camera. Upon inspection, the court shall excise the portions of the statement that do not relate to the subject matter concerning which the witness had testified, and shall order that the statement, with such material excised, be delivered to the moving party. Any portion of the statement that is withheld from the defendant over the defendant's objection shall be preserved by the attorney for the state, and, in the event of a conviction and an appeal by the defendant, shall be made available to the appellate court for the purpose of determining the correctness of the decision to excise the portion of the statement.

(d) Recess for Examination of Statement. Upon delivery of the statement to the moving party, the court, upon application of that party, may recess proceedings in the trial for the examination of such statement and for preparation for its use in the trial.

(e) Sanction for Failure to Produce Statement. If the other party elects not to comply with an order to deliver a statement to the moving party, the court shall order that the testimony of the witness be stricken from the record and that the trial proceed, or, if it is the attorney for the state who elects not to comply, shall declare a mistrial if required by the interest of justice.

(f) Production of Statements at Pretrial Hearing. Except as herein provided, this rule shall apply at a hearing before the trial court on a motion under Rule 12(b).

(g) Definition. As used in this rule, a "statement" of a witness means:

(1) a written statement made by the witness that is signed or otherwise adopted or approved by the witness; or

(2) a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof.

[Adopted effective August 22, 1984.]

Comment to 1984 Amendment

Rule 26.2 incorporates, with certain changes, the former provisions of Rule 16(a)(1)(E) and 16(a)(1)(F). The production of these statements, commonly known as Jencks material (18 U.S.C. s 3500, now appearing in Fed.R.Crim.P. 26.2), was thought to be more logically covered in the Rules dealing with trial procedure, rather than pretrial discovery.

The language of Rule 26.2 is substantially identical to the language in Rule 26.2 of the Federal Rules of Criminal Procedure. There are, however, two other differences that deserve comment.

First, as formerly was evident in Rule 16, the Committee deliberately did not incorporate that provision of subdivision (e)(3) of the Jenck's Act, which applies to statements of witnesses before a grand jury, and such statements are not meant to be obtainable simply because a grand jury witness testifies for the State. Such statements may only be obtained under the limited provisions of existing law now contained in Rule 6(k)(2).

Second, Rule 26.2(f) now makes it clear that this rule applies not only to trial situations, but also to pretrial testimony such as might be given at a suppression hearing. There would be little logic in requiring statement production only at trial, and not at pretrial hearings where testimony as to the facts of the case is being given under oath. This provision is similar to language found in Rule 12(i) of the Federal Rules of Criminal Procedure but the Tennessee Rules Commission elected to treat all witness statements in one rule. However, the Tennessee rule applies to all pretrial motions under Rule 12(b). Further, the Federal rule treats law enforcement officials as witnesses called by the state, but the commission elected not to adopt this provision. Obviously, Rule 26.2(c) applies to such pretrial motion hearings. Thus, only part of a witness' statement may be relevant to the hearing. The remainder may then be disclosed at trial under the provisions of Rule 26.2(a).

The commission desires to make clear that this entire rule in no way applies to a preliminary hearing or any other hearing conducted in general sessions court. Rather, Rule 26.2 applies only in criminal court.

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