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

Plain-English summary

Tennessee's pretrial diversion program lets eligible criminal defendants enter into a memorandum of understanding (MOU) with the State. In exchange for completing a probation-like period without new offenses, the charges are eventually dismissed without conviction. To enter the program, the defendant has to submit a statement detailing their version of the facts underlying the offense. The state needs that statement to evaluate the diversion request.

A key question is what happens to that statement if the defendant violates the MOU and is then tried on the underlying charge. The defendant has given up information that the State did not previously have. Under the existing 2010 statute, the legislature spelled out the rule: the diversion 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 the prior statement.

HB 3283 proposed to delete that statutory rule entirely. Rep. Karen Camper asked the AG whether deleting the rule violated separation of powers. The concern was that if the legislature had previously told the courts how to handle this evidence, was the legislature retracting that direction also a regulation of judicial process?

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."

The crucial point: HB 3283 does not purport to direct the admissibility of any particular evidence or determine the relevance of any particular evidence. It just removes the current legislative declaration. Once that statutory rule is gone, the admissibility of the defendant's diversion statement at a later trial is governed by the general rules of evidence and by constitutional and case-law rules about the use of a defendant's statement at trial. The opinion describes these generically rather than naming specific doctrines. All of that is judicial territory. The legislature is not invading it; it is leaving it.

Separation of powers is therefore satisfied. The legislature is exercising its substantive power to define the diversion program. By choosing not to layer an evidence rule on top, it leaves the courts to do their job.

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.

Tennessee's pretrial diversion statute and the underlying evidence rules have evolved since 2010. State v. Mallard's framework on legislative-judicial separation in evidence remains binding, but specific applications have been refined by later Tennessee Supreme Court decisions. Any current Tennessee criminal procedure question about diversion-statement admissibility should be checked against the current statute and current case law.

Common questions

Q: What is pretrial diversion in Tennessee?
A: A program letting eligible criminal defendants enter into an MOU with the State. The defendant agrees to comply with conditions (no new offenses, possibly community service, etc.) for a probationary period. If the defendant completes the period successfully, the underlying charges are dismissed without conviction. If the defendant violates the MOU, the State can pursue the original charges to trial.

Q: Why does a diversion applicant have to submit a statement of the offense?
A: Because the State has to evaluate whether to agree to diversion. The defendant's account of the facts is part of the picture the prosecutor uses to decide whether diversion is appropriate. Without some form of disclosure, the State cannot assess the case.

Q: What was the existing rule about that statement?
A: Under the 2010 version of the statute, the statement was inadmissible in the State's case-in-chief at any later trial, but admissible for impeachment if the defendant testified contrary to the prior statement. That was a legislative judgment that struck a balance: protect the diversion process by limiting the prosecution's affirmative use of the statement, but allow the truth-seeking function of cross-examination if the defendant later contradicted themselves.

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: That is the separation-of-powers concern Rep. Camper raised. The AG read it the other way: the original statute was already at the edge of legislative authority (legislative regulation of admissibility crosses into judicial territory). Deleting the rule retracts the legislative judgment and lets the courts govern admissibility under the regular rules of evidence. That is the legislature leaving the field, not invading it.

Q: How would courts handle the statement without the statutory rule?
A: Under general Tennessee Rules of Evidence and constitutional rules. The opinion does not list which specific rules would apply; it says only that 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." Relevance, hearsay, and self-incrimination principles are the kinds of doctrines that fall into that category.

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. Tennessee Code Annotated provides for pretrial diversion as an alternative to prosecution for eligible defendants charged with certain non-violent offenses. The defendant signs an MOU with the State, agreeing to conditions for a probationary period. Successful completion leads to dismissal without conviction. Violation leads to prosecution.

The statement-of-offense requirement. Both the existing law (as of 2010) and HB 3283 required the defendant to submit a written statement of the facts underlying the offense as part of the diversion application. The State uses this in deciding whether to grant diversion.

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 of any particular evidence. It just removes the existing legislative declaration. Once the statute is gone, the courts apply ordinary evidentiary and constitutional principles to decide admissibility. The legislature is leaving the field, not invading it. The structural reasoning is intuitive: if the prior statutory rule was constitutional, the absence of the rule (letting courts decide) must also be constitutional, because the absence places more discretion in the judiciary, not less.

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