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TENNESSEE WRONGFUL DEATH DAMAGES
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Date created
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Cards (147)
Section 1
(50 cards)
TENNESSEE WRONGFUL DEATH DAMAGES
Under Tennessee's Wrongful Death Act, there are two classes of damages. The first class of damages are the damages sustained by the person prior to death. This includes pain and suffering actually endured by the injured person before death, any lost earning capacity during this period, medical expenses before death, and funeral expenses. The second class of damages is the pecuniary value of the life of the deceased. Factors to be considered are the deceased's age, health, life expectancy, strength and capacity for work and earning money, and personal habits of sobriety and industry. In addition, a loss of consortium may be considered a part of the pecuniary value of the decedent's life. These consortium damages include the tangible services of the deceased plus intangible benefits, such as love, affection, and companionship.
ADMINISTRATOR'S DUTIES
First, file a petition in the form required by law with the court having probate jurisdiction for the decendent's domicile at death. The administrator should see that proper notice is given to creditors by publication and by actual notice to creditors reasonably ascertainable. Should he have a question as to any creditor's claims, he should timely except to them. He would also file a Tennessee inheritance tax return. The administrator is responsible for marshaling the estate's assets. If there were questions as to the titling of property or as to the inheritance, as personal representative, he would be responsible for resolving those questions or having them presented to the court.
IF ADMINISTRATOR IS NOT SOLE BENEFICIARY
The administrator must post bond unless the will specifically waives it. If the administrator is not the sole beneficiary, he is required to file an inventory and to notify each residuary distributee of the intestate estate.
DETERMINING AMOUNT OF PUNITIVE
To determine the amount of punitive damages, the jury should consider defendant's financial condition, including net worth; reprehensibility of defendant's conduct, including the impact on the plaintiff's future life; defendant's awareness of the harm and motivation in causing it; the duration of the conduct; the expense borne by the plaintiff; the defendant's profit; whether defendant has previously been subjected to punitive damages for the same conduct; whether the defendant took remedial action or offered a prompt and fair settlement; and any other circumstances relevant to the proper amount of an award.
BURDEN OF PROOF: UNDUE INFLUENCE
A presumption of undue influence arises if the testator and beneficiary were in a confidential relationship and the beneficiary had a role in procuring the will. Then the beneficiary has the burden of overcoming it.
BLANK INDORSEMENT
A blank indorsement is a signature that is not accompanied by named a specific indorsee. Making a blank indorsement converts order paper to bearer paper, which can be negotiated solely by transfer of possession even if that transfer was involuntary.
SPOUSAL INTESTATE SHARE
A spouse takes a child's share in intestacy but not less than one third.
ELECTIVE SHARE
A spouse may elect against the will within nine months of death, and takes a statutory elective share, as well as a homestead exemption, certain statutory personal property, and a year's support as awarded by the court. The nine months limitation controls unless there is pending litigation affecting the estate or the spouse has made a timely demand for information.
STANDING TO ASSERT WRONGFUL DEATH CLAIM STANDING
Under Tennessee's Wrongful Death Act, the deceased person's right of action against a tortfeasor survives and passes to the next of kin.
PROVING AN ATTESTED WILL
If there is no attestation clause, there is no presumption that a will was validly executed. The proponent would need to prove that the testator either signed or acknowledged his signature in the presence of two witnesses, when both of them were present, and that both of them signed as witnesses in the present of the testator and of each other, knowing that they were witnessing the will.
DEFINING RECKLESSNESS IN TORT
A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of injury or damage to another.
CLAIMS COMMISSION AND PRIVATE DEFENDANT
When a plaintiff is suing the state and a private defendant for related claims, the Claims Commission is authorized to transfer its claim to the appropriate chancery or circuit court.
CHILD'S RIGHT TO INHERITANCE
There is no statutory right for a child to inherit in Tennessee. If the will exempts the child, he may only take if he qualifies as a pretermitted child. A child born after the making of a will who is neither provided for or disinherited takes the same portion of the estate as if the decedent had died intestate.
CONFIDENTIAL RELATIONSHIP AND UNDUE INFLUENCE
The existence of a confidential relationship is a question of fact. However, there are certain situation where influence is so likely that a confidential relationship is presumed. This includes doctor or nurse and patient.
IF ADMINISTRATOR IS SOLE BENEFICIARY
An administrator who is also the sole beneficiary need not pay bond if the court approves. Upon retaining a release from the Tennessee Department of Revenue on the estate, he can proceed to close the estate in lieu of an accounting.
LATENT AMBIGUITY IN A WILL
A latent ambiguity, such as misdescribing a beneficiary, can be cured by extrinsic evidence.
NET ESTATE
The spousal share takes from the net estate, which consists of all real and personal property subject to disposition under the will, less secured debts to the extent of the security, funeral and administration expenses, and the award of exempt property, homestead allowance, and year's support. The share is reduced by the value of all assets deemed transferred to the surviving spouse except the homestead allowance, exempt property and year's support.
CAPACITY TO MAKE A WILL
The test for testamentary capacity is whether the testator understood the nature and effect of what he was doing in making a will, the nature and extent of his property, and the natural objects of his bounty. Under Tennessee law, capacity needs to be shown only at the time of making the will (i.e., during a lucid moment) and not generally. An existing conservatorship or signs of dementia are not enough to negate the testator's capacity.
PUNITIVE DAMAGES IN TORT
In Tennessee, punitive damages are to be awarded in only the most egregious of cases. The purpose of punitive damages is not to further compensate the plaintiff but rather to punish a wrongdoer and to deter others from committing similar wrongs in the future. To recover punitive damages, the plaintiff must prove by clear and convincing evidence that the defendant acted either intentionally, fraudulently, maliciously, or recklessly.
FALSE IMPRISONMENT
False imprisonment is the intentional restraint or detention of another person without just cause. The defendant intended to confine the plaintiff within fixed boundaries, and did so by threats or assertions of authority, leading the plaintiff to believe she was not free to leave.
SIMULTANEOUS DEATH AND TENANCY BY THE ENTIRETY
Where there is no sufficient evidence that the spouses died other than simultaneously, a tenancy by the entirety is converted to a tenancy in common.
OPENING AN ESTATE
The next of kin should open the administration of the estate and the personal representative would then be in control of the estate property, pending orders of the probate court. Next of kin has priority for appointment as personal representative.
YEAR'S SUPPORT FOR SPOUSAL ELECTION
The year's support is an amount set by the probate court for the surviving spouse's maintenance for a year based on the spouse's standard of living, taking into account the condition of the estate.
INTERESTED WITNESS TO A WILL
An interested witness takes no more than an intestate share as of the date of death, unless that witness is a supernumerary, not a necessary witness.
CONTRACT TO MAKE A WILL
A will is a document that can be modified or revoked up until death. However, if a contract to make a will, or not to revoke a will, is proven, then a claim can arise against the decedent's estate for breach of that contract. Mutual wills are not presumed to form a contract not to revoke. A contract to make a will, or not to revoke a will, can be established only by: (i) stating the terms of the contract in the will; (ii) express reference in the will to the existence of the contract, the terms of which are proven by extrinsic evidence; or (iii) a separate writing signed by the decedent evidencing the contract.
CLAIMS AGAINST PAYOR BANK
The bank may not honor a check that is not properly payable.
SLANDER PER SE: CRIME
The imputation of a crime is slander per se.
REAL PROPERTY VESTS AT DEATH
Real property vests as of the date of death, and the beneficiary has the immediate right to it once established as beneficiary.
PERSONAL PROPERTY FOR SPOUSAL ELECTION
The specified personal property is generally tangible personal property normally located or used in the residence and not primarily used for business or investment, up to a $50,000 value. It also includes vehicles not used primarily in a trade or business.
JOINTLY TITLED SPOUSAL PROPERTY
Property titled in joint names as husband and wife is held as tenants by the entirety and passes to the surviving spouse outright, unaffected by a will. However, the value of the deceased spouse's interest in the property will be deducted from the elective share amount because it was included in the gross estate for inheritance tax purposes.
UNDUE INFLUENCE: IMMORAL RELATIONSHIP
Tennessee law defines certain types of situations as being "confidential relationships," one of those being immoral relationships.
DEFINING MALICE IN TORT
A person acts maliciously when the person is motivated by ill will, hatred, or personal spite.
SHOPKEEPER'S PRIVILEGE
If the store clerk was acting in the course and scope of his employment, the respondeat superior rule would apply, and the store would be subject to vicarious liability. Tennessee has a shopkeeper's privilege statute that protects a merchant, a merchant's employee, or a peace officer who has probable cause to believe that a person has committed a theft offence. The person may be detained for questioning and investigation. Civil liability is precluded so long as the employee or the officer has reasonable grounds for suspicion, acts in a reasonable manner under the circumstances, and detains the person for a reasonable period of time. The reasonable period of time is defined to include any time spent waiting for a police officer's arrival.
PRETERMITTED CHILD STATUTE
A child born after his parent makes his will, and not provided for nor disinherited in the will, nor provided for by the testator in his lifetime, is entitled to take an intestate share as though the testator had died intestate. Intent to disinherit may be inferred from the surrounding circumstances.
STATE CONTRACTOR LIABILITY
The state is not liable for the negligence of its independent contractor. Sovereign immunity of the state does not apply to the contractor, and the contractor must carry adequate liability insurance.
NUNCUPATIVE WILL
Remarks might constitute a nuncupative will if they were uttered by someone in imminent peril of death, if he indeed died of the illness, two of the witnesses were disinterested, and the statements were written down by a witness within 30 days. It would then have to be offered for probate within 6 months. A nuncupative will cannot revoke or vary a written will, cannot affect real estate, and cannot affect more than $1000 of personal property.
STATE/EMPLOYEE LIABILITY
Employees of the state are immune from liability for their negligence if they were acting within the scope of their employment. Tort claims can be brought against the state itself in the Tennessee Claims Commission. Regardless of the amount of fault found against the state of Tennessee, its liability is capped at $300,000.
STOP PAYMENT ORDER
A check paid over a customer's valid stop payment order is not properly payable. For a stop payment order to be valid, the order must be received by the payor bank with sufficient time for the bank to have a reasonable opportunity to act on it.
JUDICIAL REVIEW OF PUNITIVE AWARD
After the jury has made an award of punitive damages, the trial judge must review the award, giving consideration to all the applicable criteria, and must set forth the reasons for decreasing or approving the award in findings of fact and conclusions of law. If the trial judge does not follow the procedure, a remand is required.
WHERE TO FILE TORTS CLAIM
If damages exceed $25,000, the claim will exceed the jurisdictional cap applicable in general sessions court. The statute giving chancery court concurrent jurisdiction with the circuit court contains an exception for suits for unliquidated damages for personal injury. Therefore, circuit court is the only viable option.
SIMULTANEOUS REPRESENTATION
Rule 1.7 of the Rules of Professional Conduct allows for join representation where the lawyer reasonably believes that the representation will not affect the relationship with either client, and each client consents in writing after consultation.
DIVORCE REVOKES GIFT TO SPOUSE
Under Tennessee law, a divorce revokes any gift in an existing will to the other party in the divorce, unless the will provides to the contrary.
BIFURCATION FOR AWARD OF PUNITIVE DAMAGES
Upon motion by the defendant before trial, the court must bifurcate the trial when punitive damages are requested. In phase one, the factfinder decides compensatory damages and whether punitive damages should be awarded. In phase two, the factfinder decides the amount of the punitive damages. At the close of phase one, the defendant may also move for a directed verdict on the plaintiff's claim for punitive damages on the ground that the applicable standard has not been met as a matter of law.
WHO HOLDS RIGHT OF WRONGFUL DEATH ACTION
The right of action is in the surviving spouse. If there is not a surviving spouse, the right of action passes to the next of kin.
SLANDER
Slander is a false oral communication published to at least one other person, which causes harm.
SIMULTANEOUS DEATH AND INSURANCE
Where there is no sufficient evidence that that insured and beneficiary died other than simultaneously, then the insured is presumed to have survived the beneficiary.
UNDUE INFLUENCE: WILLS
If a will is shown to be procured by undue influence, it is invalid to the extent it is affected by the undue influence. Undue influence consists of the substitution of another's will for that of the testator. Influence gained by attention and kindness, or fair persuasion, is not undue. Some suspicious circumstances used to show undue influence include a confidential relationship between the proposed beneficiary and the testator, the testator's advanced age and failing health, the beneficiary's role in procuring the will, secrecy concerning the will, lack of independent advice in preparing the will, and differences between the will and the testator's announced intentions.
HOLOGRAPH
The technical requirements for a holographic will are that all material parts were in the testator's handwriting and the document was signed by her. The handwriting and signature should be proven by two witnesses. The testator must also intend that the document be immediately effective, instead of merely intending to draft a will or express her opinion. A valid holograph will revoke a prior will because a holograph is of equal dignity with an attested will.
DEFINING INTENTIONALLY IN TORT
A person acts intentionally when it is the person's conscious objective or desire to engage in the conduct or cause the result.
SIMULTANEOUS DEATH AND INTESTACY
An individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of intestate succession.
Section 2
(50 cards)
VICTIM IMPACT EVIDENCE
Where the victim is a minor, immediate family members can provide victim impact evidence under Tennessee law. However, victim impact statements are only relevant to sentencing considerations by the trial court and not to the determination of guilt or innocence of an accused. Specifically, such evidence is relevant to sentencing enhancement factors under the sentencing statute such as extent of injuries of the victim and cruelty to the victim. This information is normally collected as part of the presentence investigation and included in the presentence report submitted to the judge prior to sentencing, not non-capital offenses. For capital offenses, the evidence must be relevant to one of the statutorily delineated aggravating factors. Victim impact statements have been held to be relevant to consideration of the nature and circumstances of the crime. The evidence, however, must be carefully monitored by the court. The prosecution should give advance notice of its intended use. In addition, the statements must be limited to relevant facts and not be unduly prejudicial and inflammatory.
ALIBI PROCEDURE
To assert an alibi defense, the defendant must provide notice of intent to do so only if the prosecution first supplies specific notice of the time, date, and place of the offense. If the state does so, the defendant must provide notice of the specific places where he claims to have been at the time of the crime, including the names of any witnesses that will be called to establish or corroborate the alibi claim. The prosecution must in response provide a list of witnesses it intends to call to place the defendant at the scene of the crime or otherwise to rebut his alibi defense. If the defense fails to comply with the notice rule, the defense's alibi witnesses may be excluded from testifying.
AGGRAVATING CIRCUMSTANCES
The following constitute possible aggravating circumstances supporting a death sentence: one or more prior felony convictions involving violence; the commission of the murder was particularly heinous or cruel; post-mortem mutilation of the body. It is important to remember that the only circumstances that can be used as aggravating factors are those listed in the statute.
INSANITY DEFENSE STANDARD ON APPEAL
Appellate review of a jury determination of an insanity defense is one of reasonableness. Specifically, an appellate court should reverse the finding of a jury regarding insanity only if the court determines that no reasonable trier of fact could have reached the same conclusion. If the jury rejects the defense, the court should reverse that finding only if it determines that, when viewing the evidence in the light most favorable to the state, no reasonable trier of fact could have failed to find that the defendant's insanity at the time of the crime was established by clear and convincing evidence. This standard reflects deference to the jury, which is vested with significant and exclusive discretion to make the sanity determination.
INSANITY DEFENSE BURDEN
Under Tennessee law, the defendant has the burden of proving insanity at the time of the offense by clear and convincing evidence. To establish insanity, the defendant must prove that, due to a severe mental disease or defect, at the time of the crime the defendant was unable to appreciate the wrongful nature of his conduct. Moreover, while expert testimony is permissible regarding the nature and effect of any mental disease, no expert may testify as to insanity itself.
MULTIPLE SEX OFFENSES AND JURY UNANIMITY
Under Tennessee law, when the evidence suggests that the defendant committed many sexual offenses against a victim, the prosecution must "elect" the specific events or incidents for which conviction is sought to ensure a unanimous verdict on each individual offense or incident. Otherwise, each juror might vote to convict based on her particular view of the evidence of different events. In such a case there might be a conviction even though the jurors did not all agree that the evidence was sufficient on any one particular incident. Thus, the defense has a right to require that the prosecution elect the specific incident or event upon which it seeks a conviction on the single count of rape alleged in the indictment. In addition, the defendant is entitled to a jury instruction on the requirement of jury unanimity.
PERSONAL JURISDICTION IN TORT
The long-arm statute basis of jurisdiction for committing a tort in Tennessee has been judicially construed to include an act outside the border but injury within the border of the forum state.
VENUE
By statute, venue must be laid in one of three counties: where the cause of action arose, where the defendant resides, or (if the cause of action accrued before October 1, 2011), wherever the defendant may be found.
WIRETAPPING
Under Tennessee law, it is unlawful to intentionally intercept any electronic communication, but it is legal to do so when the person intercepting and recording the conversation or a party to the conversation has given consent. It is also illegal to intentionally "procure" another person to intercept the electronic communications unlawfully. A person who so procures can also be liable as an accomplice to the interception, because she specifically intends that the interception occur, and encourages or assists the interception. A third means of liability for procuring the interception is solicitation. Unlawful wiretap is a felony, and anyone guilty of the crime may be subject to imprisonment for at least a year or may have to pay a fine if the statute authorizes a fine.
NOTICE OF DISHONOR TO INDORSER
An indorser does not become liable until notice of dishonor is given or excused. A bank must give notice of dishonor by midnight of the banking day following the dishonor.
RELIABILITY OF BYSTANDER
A bystander witness, as opposed to a police informant, is presumed to be a reliable source of information.
FORFEITURE OF VEHICLE
A vehicle used to transport drugs is subject to forfeiture. Because the forfeiture proceeding is civil in nature, the state is only required to prove the transport of drugs by a preponderance of the evidence. The state, however, must follow specific procedures in effecting the forfeiture. First, the officer is required to give a receipt for seizure of the vehicle. The receipt or notice should include a statement of the reasons for the seizure and describe how and when you should contest the seizure. The owner is entitled to a hearing on the seizure if he files a timely claim contesting it. If any of the procedures, which are constitutionally required under the Due Process Clause of the Fourteenth Amendment, are not me, the seizure may be contested on procedural grounds.
SPEEDY TRIAL
Under both the state and federal constitutions, a determination of a possible speedy trial violation is determined on a case-by-case basis. There are four factors to be considered: first, the length of the delay must be examined. Second, the court will consider the reason for the delay. Third, the court must consider whether the defendant demanded a speedy trial. Fourth, the court examines whether the defendant has been prejudiced by the delay.
DUI: WHAT CONSTITUTES DRIVING
The DUI statute applies to anyone having control of a vehicle while intoxicated.
SEVERANCE/ TRYING ALL COUNTS IN ONE TRIAL
To avoid trying all counts in one trial, the defendant may file a motion for severance pursuant to Tennessee Rules of Criminal Procedure. Under the Rule, the defendant has a right to have the charges tried separately unless the offenses are part of a common scheme or plan, or the evidence of each offense would be admissible at trial of the other offenses. Severance is also required when necessary to ensure a fair determination of the defendant's guilt or innocence, i.e., if consolidation would result in prejudice to the defendant.
RIGHTS OF BANK TAKING FOR COLLECTION
A bank that has taken an item for collection has a right to charge back the amount of any credit given for the item if the item is not paid. It also has a right to recover from the customer the amount of any overdrafts it has allowed the customer to make.
PENALTY PHASE OF CAPITAL CASE: PRIOR CONVICTIONS
During the penalty phase in a capital case, the prosecution may only offer evidence relevant to statutorily delineated aggravating factors. One of those factors is the prior conviction of the defendant for felonies involving violence against others. Only convictions, not simply arrests, may be used.
CRIMINAL PROCEDURE: DISCOVERY
The primary method used to obtain tapes is a request to the state for discovery of such tapes pursuant to Rule 16 of the Tennessee Rules of Criminal Procedure. Under the rule the defendant may request discovery of, among other things, any document or tangible thing in the possession or control of the state that would be material to any preparation of the defense or may be used in the prosecution in presentation of the state's case in chief. The defendant is also entitled to any evidence that may be exculpatory. Under Brady v. Maryland, the state has an ongoing duty to provide the defense with any such exculpatory evidence.
NEGLIGENCE OF BOTH BANK AND CUSTOMER
If the customer can establish that the bank itself failed to exercise ordinary care in taking or paying the check, the bank may be held responsible for all or part of the loss, which would be allocated between the two parties to the extent the respective negligence of each contributed to the loss.
BILL OF PARTICULARS
To obtain more information about the time and place of each charge, the defense should file a motion for a bill of particulars. Rule 7(c) of the Tennessee Rules of Criminal Procedure provides that a defendant may request a bill of particulars if needed to identify adequately the offenses charged. The court should grant the motion whenever the information sought is necessary to preparation of the defense to the charges or to avoid prejudicial surprise at trial.
FRAUDULENT INDORSEMENT AND NEGLIGENCE
Any person whose negligence substantially contributes to a forged signature is precluded from asserting the forgery.
RIGHT TO POST-CONVICTION RELIEF
Under the Tennessee statute governing post-conviction review, relief is available for the infringement or denial of any state or federal constitutional rights. The statute establishes a one-year statute of limitations on all claims for post-conviction relief. The statute begins to run after the final decision of the highest appellate court to which an appeal is taken or the date the conviction is final if no appeal is taken. The limitation period has few exceptions, including a newly recognized constitutional rule or innocence based on scientific evidence.
BANK STATEMENT RULE
Under the bank statement rule, where a customer fails to check his statement within 30 days and notify the bank of any forged signatures or alterations, the customer is precluded from asserting a subsequent forgery or alteration by the same wrongdoer.
STOPPING A VEHICLE FOR INVESTIGATION
To stop a vehicle for investigation, the officer had to have had a reasonable suspicion that the defendant was engaged in criminal activity.
PLAIN VIEW EXCEPTION
For the plain view exception to the warrant requirement to be applicable, the law enforcement officer must lawfully be present in the place where he observe the items at issue. To seize items in plain view, the law requires that the incriminating nature of the items be readily apparent.
BANK LIABILITY FOR FAILING TO RETURN DISHONORED CHECK
A bank may be liable on a dishonored check if it fails to return it or give notice of dishonor prior to its midnight deadline.
DEFENDANT EVADING SERVICE OF PROCESS
Where the defendant is evading service of process, state practice allows service on a person of suitable age and discretion residing in the defendant's dwelling house.
CRIMINAL DEFENDANT'S RIGHT TO TESTIFY
The defendant's right to testify is a fundamental right guaranteed by both the Tennessee Constitution and the Due Process Clause of the Fifth and Fourteenth Amendments of the United States Constitution. The right to testify is personal to the defendant and must be waived expressly by the defendant, not just through statements of counsel. To ensure that the defendant is waiving his right to testify, the court should make an express inquiry, preferably by holding a hearing, that the defendant did intend to waive the right and that the waiver was voluntary, knowing, and intelligent. The best process would be to have the defense lawyer question his client about the basis of the client's decision not to testify sufficient to satisfy the court of the validity of the waiver.
SEARCH INCIDENT TO ARREST
When the officer conducts a search having probable cause to make an arrest, but before actually making an arrest, the search may be suppressed. The United States Supreme Court has made it clear that there must be an actual arrest, not just an authority to make an arrest, to justify the search.
WARRANTLESS SEARCH OF PROPERTY
To constitutionally search and seize property, the law generally requires that the police officer have a search warrant. A search without a warrant is invalid unless one of the exceptions to the warrant requirement exists, such as exigent circumstances, like the imminent destruction of evidence.
AFFIDAVIT FOR MSJ
An affidavit supporting or opposing a motion for summary judgment must be based on the affiant's personal knowledge, state facts admissible in evidence, and demonstrate that the affiant is competent to testify.
SERVICE OF PROCESS
A writ for service of process loses its efficacy after 30 days.
REFUSING TO SUBMIT TO BREATHALYZER
Under Tennessee law, the police may detain someone who refuses to take a breathalyzer test for safety reasons. The detention is remedial—to keep intoxicated people off the street—not criminal. The only constitutional limitation on such a policy is due process. Where a driver is arrested for refusing the breathalyzer, rather than merely detained, this may violate due process, especially if the officer lacks probably cause to arrest for DUI.
LIABILITY OF A BANK: CHOICE OF LAW
The UCC specifically provides that for purposes of determining the liability of a bank for action or nonaction with respect to an item handled by it, the law of the state in which the bank is located governs.
PRESENTMENT WARRANTY
Each person that presents a draft for payment warrants that they are a person entitled to enforce the draft. This warranty is breached by a forged indorsement.
NON-BANK CHOICE OF LAW
Questions of liability for non-banks, including questions of indorser liability and breach of transfer warranties, are in the nature of contract performance issues, and in such issues Tennessee courts have applied the law of the state where the performance took place.
LESSER INCLUDED OFFENSES
To determine whether one crime is a lesser-included offense of another crime, the general rule in Tennessee is that a crime is a lesser-included offense of another if all of the statutory elements are included as elements of the other crime. In addition, a crime may be a lesser-included offense even if the general test is not met, as long as the only difference is that (i) the crime requires a less culpable mental state; or (ii) the crime is based on facilitation, solicitation, or attempt of the other crime.
REBUTTING AN INSANITY DEFENSE
The prosecution may counter evidence of insanity three ways. First, the prosecution may offer expert testimony to rebut any evidence offered by the defendant. The prosecution may also offer law witness testimony to establish facts contrary to the assertion of insanity. Third, the prosecution may rely on cross-examination of the defendant's witnesses, particularly the defendant's expert witnesses, to undermine the credibility and value of that evidence.
SEIZURE OF A PERSON
The officer must have had at least a reasonable suspicion that the seized person was engaged in criminal activity for the stop to be legal. Without a seizure, no constitutional protections attach. The Tennessee Supreme Court has held that ordering a citizen to stop and taking action to effect the stop constitutes a seizure. However, in federal court, the US Supreme Court has held that ordering someone to stop and effecting a stop is not a seizure, and the stopped person's constitutional rights do not attach.
EFFECT OF INDORSEMENT
An indorser promises that he will pay any person who becomes a subsequent holder.
FRAUDULENT INDORSEMENT
The general rule is that an unauthorized signature is wholly inoperative as that of the person whose name is signed.
REGULATORY CRIMES
Regulatory crimes, like parking illegally, are usually strict liability in nature.
ARREST FOR MINOR OFFENSE
If the officer had the authority to arrest under the statute, the arrest was reasonable and constitutional. As long as the statute permits an arrest for the offense, the arrest is reasonable, regardless of how minor the offense may be.
RULE 11 DUTY TO INVESTIGATE
Rule 11 requires me to make a reasonable inquiry under the circumstances to determine that the factual contentions are supported by evidence. A lawyer may rely on a client's recitation of facts unless the facts are facially suspicious.
HOMESTEAD
The surviving spouse is entitled to apply for homestead in the principal residence. On application, she is entitled to an interest in the property equal to $5,000 (or more if either or both spouses are older than 62, or if there are minor children in the applicant's custody). This can be in the form of a life estate, or a cash award of $5,000.
VENUE FOR CRIMINAL PROCEEDINGS
The state of Tennessee has the burden of proving venue for the charged offenses. The requirement that venue be limited to the county where the crime was allegedly committed is considered one of the incidents of a right to a jury trial under the Tennessee Constitution. The requirement is also contained in Rule 18 of the Tennessee Rules of Criminal Procedure. Venue is not considered an element of the charged offenses. Instead, it is treated as a jurisdictional fact. Therefore venue only need be proven by a preponderance of the evidence and not by proof beyond a reasonable doubt. Because proof of proper venue is an incident of the constitutional right to a jury trial under the state constitution, the existence of proper venue generally must be decided by the jury.
DOUBLE JEOPARDY STATE/FEDERAL CHARGES
The constitutional protections of the Double Jeopardy clause only bar a single sovereign from trying or punishing a person twice for the same conduct. The state and federal government are treated as separate sovereigns for double jeopardy purposes, and both may independently prosecute, try, and punish the defendant.
AGGRAVATED BURGLARY
Entry of a habitation and commission of a felony therein is aggravated burglary.
VANDALISM
Vandalism is the knowing damage to or destruction of real or personal property.
SERVICE OF PROCESS THROUGH LONG-ARM STATUTE
Service of process through the long-arm statute is typically through the secretary of state. Cases hold that the secretary of state is a resident of every county through a legal fiction.
Section 3
(47 cards)