5 Myths About Going to Trial in Tennessee

Most people facing a criminal trial in Tennessee have never seen one, except on television. Beliefs that sound right but are not fill that gap. Some make people more afraid of trial than they need to be, and others make them less careful than they should be. Here are five of the most common, with what Tennessee law actually says, including the parts that cut against you.

Myth 1: A Jury Only Needs Most of Its Members to Convict You.

If your case is tried to a jury in Tennessee, the jury is twelve people, and all twelve must agree before there can be a verdict, guilty or not guilty. That rule comes from the Tennessee Constitution and the rules for criminal trials, and before the verdict is recorded, either side can ask that each juror be asked individually whether it really is his or her verdict. But the jurors must agree that you committed the offense, not on every detail of how you did it or what you were thinking. If they cannot agree, that is not a win: the judge can send them back to keep deliberating or declare a mistrial, and the State is free to try the case again. The rule also applies only when there is a jury. Many misdemeanor cases are decided by a judge alone after the defendant signs a written waiver, and a jury in a felony case can be given up only in writing, with the prosecutor's agreement and the judge's approval.

Myth 2: If You Do Not Testify, the Prosecutor Can Tell the Jury That Means You Are Guilty.

A Tennessee prosecutor is not allowed to tell the jury, directly or by hint, that you should be held to account for not taking the witness stand. The rule is narrower than it sounds, though. The prosecutor may still argue that the State's proof was never contradicted and that the defense put on no evidence. If your own lawyer argues that you never got a chance to tell your side, the prosecutor may answer that you could have testified. The protection is also only as good as your lawyer's objection, made on the spot, because staying quiet at the time gives up the issue. Even when an appeals court agrees that the prosecutor crossed the line, the conviction is often left standing if the rest of the evidence was strong. If your lawyer asks, the judge must tell the jury that no inference may be drawn from your choice not to testify, so this is something to request rather than assume. Staying off the stand is not free; it only means the State cannot argue guilt from it.

Myth 3: If You Take the Stand, the Prosecutor Gets to Bring Up Your Whole Criminal Record.

Testifying does not automatically hand the prosecution your whole record, because Tennessee's rules put real conditions on which past convictions can be used against you. Generally, only two kinds qualify: a crime that could have been punished by more than a year in prison, or a crime that involved dishonesty or a false statement, even if it was only a misdemeanor. A felony does not have to involve dishonesty to be in play. If you are the one on trial, the State must give you written notice before trial of which convictions it intends to use. The judge weighs whether a conviction really says something about your truthfulness when your lawyer asks for that, and the judge must rule before you take the stand. Older convictions get extra scrutiny, but the ten-year clock generally runs from your release from custody to the start of the current case, and even an older conviction can still come in. A prior conviction that looks just like the current charge is not automatically kept out.

Myth 4: You Do Not Get to See the State's Evidence Until the Trial Starts.

Tennessee's criminal discovery rule entitles you to a defined list of the State's material, but only once your lawyer asks for it; nothing arrives automatically just because you were charged. The list covers your own statements to police, your recorded statements, and your prior record. It also covers documents, objects and recordings that the State plans to use at trial or that came from you, and the results of scientific tests and examinations. By its own terms, it does not cover officers' internal reports or what the State's witnesses have said. The rule does not operate in general sessions court, and a preliminary hearing there is a probable-cause hearing, not a way to see the State's file. The rule sets no number of days for the State to respond, but your lawyer does face a deadline for making the request, and missing it can waive it. Asking for certain categories also triggers obligations that run back the other way, so what gets requested is a deliberate decision.

Myth 5: If Evidence Would Help You, It Is Up to You to Find It; the Prosecution Does Not Have to Tell You.

The State has a constitutional duty, separate from the discovery rule, to disclose evidence that is favorable to you. That duty can reach material the discovery rule leaves out: the State's internal files and its witnesses' statements, information that could not itself be used at trial, material that undercuts a State witness's credibility, and favorable information held by another government agency. But it covers only evidence that is favorable to you and important enough that it could realistically have changed the outcome, and the burden of proving that falls on you. Tennessee's test still expects a defense request unless the evidence obviously points toward innocence, so your lawyer should make a written request and keep it in the file. There is no set deadline, and late disclosure is usually not treated the same as evidence that was never turned over. The prosecution also does not have to go looking for evidence outside the government's hands, or disclose what you already have or could have found yourself.

Notice the pattern: nearly every protection on this list works only if someone uses it at the right moment, through the written request, the on-the-spot objection, or the ruling before you testify. None of this promises a result, but knowing these rules is where a real defense starts. If you are facing trial in Tennessee, talk with a lawyer who knows how to put these rules to work before you decide anything.

About the Author

David G. Ridings is a Nashville criminal defense attorney, former police officer, and former prosecutor with nearly 40 years of experience in the Tennessee justice system. Known as “DrJudge,” he educates hundreds of thousands about their rights during police encounters.

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