Can the Tennessee legislature stop saying when a defendant's diversion statement is admissible at trial?

Plain-English summary

The opinion examines a proposed change to Tennessee's pretrial diversion statute. Both the existing statute and HB 3283 required a defendant requesting diversion to provide a statement detailing the defendant's version of the facts underlying the offense.

A key question is what happens to that statement if the defendant violates the diversion agreement and is then tried. Under the existing 2010 statute, the statement was inadmissible in the State's case-in-chief, but could be used to impeach the defendant if the defendant testified at trial contrary to it.

HB 3283 proposed to delete the references to use of the statement after termination of the memorandum of understanding. Rep. Karen Camper asked whether that deletion violated the Tennessee Constitution's separation-of-powers provision.

The AG answered no, with reasoning that draws a careful line. Under State v. Mallard, 40 S.W.3d 473, 481 (Tenn. 2001), the General Assembly has "broad power... to establish rules of evidence in furtherance of its ability to enact substantive law." But that power has a limit: the legislature cannot "enact rules, either of evidence or otherwise, that strike at the very heart of a court's exercise of judicial power." The inherent judicial power includes deciding "what evidence is relevant, either logically or legally, to a fact at issue."

HB 3283 does not purport to direct the admissibility or relevance of particular evidence. It removes the existing legislative declaration. If enacted, admission of the defendant's statement at trial would be governed by general rules of evidence and constitutional and case-law rules concerning defendants' statements. The opinion does not decide whether the existing statutory rule exceeded legislative authority.

The AG therefore concluded that HB 3283 would not violate Article II, Section 2's separation-of-powers provision.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The opinion addresses HB 3283 as proposed in 2010. Check the enacted law and later authorities before using its reasoning for a current diversion case.

Common questions

Q: What is pretrial diversion in Tennessee?
A: This opinion does not explain the full diversion program. It says a defendant requesting diversion must provide a statement of the underlying facts and discusses use of that statement if the diversion agreement is terminated.

Q: Why does a diversion applicant have to submit a statement of the offense?
A: The opinion says the existing statute and HB 3283 both required the defendant to provide a statement detailing the defendant's version of the facts. It does not explain the legislature's reason for that requirement.

Q: What was the existing rule about that statement?
A: If the diversion agreement was terminated, the statement was inadmissible in the State's case-in-chief at the later trial, but could be used for impeachment if the defendant testified contrary to it. The opinion does not state the policy reason for that rule.

Q: What did HB 3283 propose to change?
A: It proposed to delete the legislative admissibility rule entirely.

Q: Wouldn't deleting the rule create a problem because the legislature was previously regulating the courts?
A: The AG says deleting the rule merely removes the existing legislative declaration about admissibility. Because HB 3283 would not direct the admissibility or relevance of particular evidence, the deletion would not violate separation of powers. The opinion does not assess the constitutionality of the existing rule.

Q: How would courts handle the statement without the statutory rule?
A: The opinion says admissibility "would be governed by general rules of evidence and other constitutional and case-law rules addressing the use of a defendant's statement at his criminal trial." It does not list particular rules or decide whether the statement would be admitted.

Q: What is the State v. Mallard rule the AG relied on?
A: State v. Mallard, 40 S.W.3d 473 (Tenn. 2001), held that the General Assembly's power to enact rules of evidence is broad but not unlimited. The legislature cannot "enact rules, either of evidence or otherwise, that strike at the very heart of a court's exercise of judicial power." Determining what evidence is relevant to a fact at issue is a power "entrusted solely to the care and exercise of the judiciary." 40 S.W.3d at 483.

Background and statutory framework

The pretrial diversion program. The opinion concerns a defendant who requests diversion, provides a statement about the underlying offense, and may later face trial if the diversion agreement is terminated. It does not describe other eligibility or program conditions.

The statement-of-offense requirement. Both the existing law (as of 2010) and HB 3283 required the defendant to provide a statement detailing the defendant's version of the facts underlying the offense.

The 2010 admissibility rule. Under the existing statute, the defendant's statement was inadmissible in the State's case-in-chief at any subsequent trial after termination of the MOU. The statement was admissible for impeachment if the defendant testified contrary to the prior statement.

HB 3283. The proposed legislation deleted "all references to the potential use of the defendant's statement in the event of a termination of the memorandum of understanding." This would have left the admissibility question to be decided by ordinary evidence and constitutional rules.

The separation-of-powers framework. Tennessee Constitution Article II, § 1 divides government into three departments. Article II, § 2 prohibits one branch from exercising powers of another. State v. Mallard, 40 S.W.3d 473 (Tenn. 2001), articulates the modern doctrine:

• The General Assembly has "broad power... to establish rules of evidence in furtherance of its ability to enact substantive law" (at 481).
• That power is not unlimited.
• The legislature cannot enact rules "that strike at the very heart of a court's exercise of judicial power" (at 483).
• Inherent judicial powers include "the powers to hear facts, to decide the issues of fact made by the pleadings, and to decide the questions of law involved" (at 483).
• "[A]ny determination of what evidence is relevant, either logically or legally, to a fact at issue in litigation is a power that is entrusted solely to the care and exercise of the judiciary" (at 483).

Why HB 3283 passes the test. The AG concluded HB 3283 does not direct the admissibility or relevance of particular evidence. It removes the existing legislative declaration, leaving admission of the statement to general evidence rules and applicable constitutional and case-law rules. The opinion does not decide whether the prior rule was constitutional.

The opinion does not opine on the wisdom of the change, only on its constitutionality. Policy questions about whether the existing rule was a useful safeguard for defendants are not addressed.

Citations and references

Constitutional provisions:

• Tenn. Const. art. II, § 1 (departments of government)
• Tenn. Const. art. II, § 2 (separation of powers)

Cases:

• State v. Mallard, 40 S.W.3d 473 (Tenn. 2001)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-061.pdf

Original opinion text

May 4, 2010

Opinion No. 10-61

Separation of Powers: Pretrial Diversion Legislation (HB 3283)

QUESTION

Both the current version of the pretrial diversion statute and the proposed legislation (HB 3283) require a defendant requesting diversion to provide a statement detailing his version of the facts underlying the offense. If a defendant violates his diversion agreement and the pretrial memorandum of understanding is terminated, current law specifies that the defendant's statement is inadmissible in the State's case-in-chief at the subsequent trial but can be used for impeachment if the defendant testifies contrary to his prior statement. The proposed legislation deletes all references to the potential use of the defendant's statement in the event of a termination of the memorandum of understanding. Does this legislation violate the separation of powers doctrine established in Article II, § 2, of the Tennessee Constitution?

OPINION

No.

ANALYSIS

Article II, § 1, of the Tennessee Constitution declares that "[t]he powers of the Government shall be divided into three distinct departments: the Legislative, Executive, and Judicial." Article II, § 2, provides that "[n]o person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted." While the General Assembly has "broad power... to establish rules of evidence in furtherance of its ability to enact substantive law," its power in this regard is not unlimited. State v. Mallard, 40 S.W.3d 473, 481 (Tenn. 2001). "Just as the General Assembly has no constitutional power to enact rules that infringe the protection of the Declaration of Rights, the legislature can have no constitutional authority to enact rules, either of evidence or otherwise, that strike at the very heart of a court's exercise of judicial power[.]" Id. at 483 (citations omitted). "Among the inherent judicial powers are the powers to hear facts, to decide the issues of fact made by the pleadings, and to decide the questions of law involved." Id. at 483. Thus, "any determination of what evidence is relevant, either logically or legally, to a fact at issue in litigation is a power that is entrusted solely to the care and exercise of the judiciary." Id. at 483.

The proposed legislation does not purport to direct the admissibility of particular evidence or to determine the relevance of any particular evidence. Rather, the legislation merely removes the current legislative declaration of the statement's admissibility in a criminal proceeding. If HB 3283 is enacted, the admission at trial of the defendant's statement-of-the-offense facts would be governed by general rules of evidence and other constitutional and case-law rules addressing the use of a defendant's statement at his criminal trial. Therefore, HB 3283 does not run afoul of the separation of powers provision of Article II, § 2.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

AMY L. TARKINGTON
Deputy Attorney General

Requested by:

Honorable Karen D. Camper
State Representative
20 Legislative Plaza
Nashville, Tennessee 37243