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Rule 26.2 – Production of Statements of Witnesses

May 14, 2021 | Criminal Procedure, Tennessee

(a) Motion for Production. After a witness other than the defendant has testified on direct examination, the 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 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 of the witness’s testimony.
(b) Production of Statement.

(1)Entire Statement. If the entire statement relates to the subject matter of the witness’s testimony, the court shall order that the statement be delivered to the moving party.
(2)Redacted Statement.

(A) Delivery to Court. If the other party claims that the statement contains matter that does not relate to the subject matter of the witness’s testimony, the court shall order that it be delivered to the court in camera.
(B) Redaction of Unrelated Portions. Upon inspection, the court shall redact the portions of the statement that do not relate to the subject matter of the witness’s testimony. The remaining parts of the statement shall be delivered to the moving party. Any portion of the statement that is withheld from the defendant over the defendant’s objection must be preserved by the attorney for the state. In the event of a conviction and an appeal by the defendant, this preserved portion 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.
(c) Recess for Examination of Statement. The court may recess the proceedings to allow time for a party to examine the statement and prepare for its use.
(d) Sanction for Failure to Produce Statement. If the party who called the witness disobeys an order to deliver a statement, the court shall strike the witness’s testimony from the record and order the trial to proceed. If the attorney for the state disobeys the order, the court shall declare a mistrial if required in the interest of justice.
(e) Production of Statements at Pretrial Hearing. Except as otherwise provided by law, this rule shall apply at a motion hearing under Rule 12(b).
(f) Definition of “Statement. ” As used in this rule, a witness’s “statement” means:

(1) A written statement that the witness makes and signs, or otherwise adopts or approves; or
(2) A substantially verbatim, contemporaneously recorded recital of the witness’s oral statement that is contained in a stenographic, mechanical, electrical, or other recording or a transcription of such a statement.

Tenn. R. Crim. P. 26.2

Advisory Commission Comment.

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

First, the Committee deliberately did not incorporate that provision of subdivision (e)(3) of the federal Jenck’s Act, 18 U.S.C. ยง 3500, 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(e) 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(b) 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.