                    IN THE SUPREME COURT OF TENNESSEE
                               AT KNOXVILLE

                                                            FILED
STATE OF TENNESSEE,                       )                 January 24, 2000
                                          )
       Appellee,                          )              Cecil Crowson, Jr.
                                          )             Appellate Court Clerk
v.                                        )      NO. E1995-00017-SC-R11-CD
                                          )
HOWARD BROWN,                             )
                                          )
       Appellant.                         )



                           DISSENTING OPINION


       I agree with the majority’s conclusion that the rape shield law does not

prohibit evidence of the victim’s prior consensual sexual activity when the State

has introduced evidence of the injury to the victim’s hymen. The defendant then

could have introduced admissible, competent, and reliable evidence to show

prior sexual activity by simply asking the victim whether she had prior sexual

contact. The defendant’s counsel failed to elicit this information from the victim

and attempted to “back door” the information via inadmissible hearsay testimony.

I depart from the majority’s opinion allowing the introduction of the inadmissible

hearsay as substantive evidence in lieu of admissible testimony from the

declarant who was present at trial to testify.



       I disagree with the majority’s conclusion that the United States Supreme

Court decisions, Green v. Georgia, 442 U.S. 95 (1979) (Rehnquist, J.,

dissenting), and Chambers v. Mississippi, 410 U.S. 284 (1973) (Rehnquist, J.,

dissenting), abrogate a valid and nonarbitrary rule against hearsay evidence and

mandate a reversal of this case. The majority's holding potentially abridges other

exclusionary rules such as the rape shield rule and places an extremely onerous
burden on trial judges.
        The majority has misapplied two extremely narrow United States Supreme

Court holdings and has created a new constitutional evidentiary principle merely

because an attorney failed to follow established evidentiary procedures that were
a prerequisite to admission of the desired hearsay testimony. See Montana v.

Egelhoff, 518 U.S. 37, 42 (1996) (“Relevant evidence may . . . be excluded on

account of a defendant's failure to comply with procedural requirements.”); see

also Michigan v. Lucas, 500 U.S. 145 (1991) (preclusion of evidence concerning

the defendant's past sexual relations with victim was no violation where the

defendant failed to comply with procedures). Moreover, the majority applies this
new constitutional principle in a manner that relieves criminal defendants from

complying with rules of evidence and procedure that are designed to ensure both

fairness and admission of reliable evidence in criminal trials.


        I would limit the application of both Green and Chambers to the facts of

those cases and would apply their holdings to hearsay issues only when the

following factors are present: (1) the statement is a declaration against a penal

interest; (2) the declarant is unavailable to testify; 1 (3) the statement is a third-
party confession to a crime in which the confession is substantially corroborated

by direct evidence; (4) the veracity or reliability of the statement is not

questionable; and (5) the defendant otherwise would be absolutely precluded
from introducing the evidence.2 These are the determinative factors in

Chambers and Green. Moreover, this limitation would be consistent with every

jurisdiction having assessed the application of Chambers and Green to hearsay
issues; perhaps most importantly the limitation is consistent with Egelhoff, 518

U.S. at 42. The hearsay evidence in the case now before us fails to meet any of

the above criteria. Accordingly, I would hold that our valid hearsay rule designed




   1
     In Cham bers, the trial judge’s application of the voucher rule effectively precluded the
declarant from testifying that he had previously confessed to the killing for which Chambers was
being tried. Accordingly, the declarant in Cham bers was unavailable as a witness to provide
direct evide nce of h is previous confes sions. See Unite d Sta tes v. Mac Don ald, 688 F.2d 224, 232
fn. 13 (4th Cir. 1982 ) (“One could arg ue that Cham bers applie s only w here the d ecla rant is
available” but unavailable to testify.).
   2
     The United States Supreme Court placed particular emphasis on the fifth factor, that the
defendant was otherwise precluded from introducing the evidence. While the case now before us
fails to meet all five elements, it is important to note that our rules of evidence would have allowed
the defendant to place this information before a jury had coun sel followed proper evidentiary
procedure.

                                                  2
to exclude testimony whose trustworthiness is inherently suspect should not be

abridged by a due process right to present testimony in this case.



                        RIGHT TO PRESENT EVIDENCE



       The majority erroneously concludes that “[e]xcluding the proffered
evidence essentially deprived Brown of an opportunity to present to the jury an

alternative explanation for the complainant’s hymenal injury.” I disagree. The

victim herself was present and available to testify. When the State made an
issue of the hymenal tear, the defendant could have simply asked the victim

whether she had previously engaged in sexual activity. The failure to pursue this

line of questioning is essentially what deprived Brown of an opportunity to
present an alternative theory explaining the hymenal tear.



       In response to counsel’s failure, the majority fashions a rule which in

effect permits a party who fails to comport with established evidentiary

procedures to present inadmissible forms of the desired evidence. Moreover,

the majority allows hearsay to be considered as substantive evidence even

though the hearsay statement would have been admissible only for

impeachment purposes had the defendant complied with the rules of evidence.
This elevation of the statement to substantive evidence due merely to a failure to

comply with evidentiary procedures is illogical. The troubling aspect of this

elevation is that the proffered evidence was subject to multiple layers of reliability
and evidentiary problems: (1) the victim may have been lying or boasting when

she made the statement to third parties; and (2) it is entirely possible that the

victim never made this statement to the third-party witnesses. Accordingly, such
evidence should not be admissible as substantive evidence.



       The right to present relevant testimony is not without limitation. Michigan

v. Lucas, 500 U.S. 145, 149 (1991); Rock v. Arkansas, 483 U.S. 44, 54 (1987);
see also United States v. Scheffer, 523 U.S. 303 (1998). The right to present

evidence may in appropriate cases bow to accommodate other legitimate

interests in the criminal trial process. Lucas, 500 U.S. at 149. Stated simply,

"[t]he accused does not have an unfettered right to offer [evidence] that is

                                          3
incompetent, privileged, or otherwise inadmissible under standard rules of

evidence." Montana v. Egelhoff, 518 U.S. 37, 42 (1996).



       States are afforded “broad latitude under the Constitution to establish

rules excluding evidence from criminal trials.” Scheffer, 523 U.S. at 306. States

shall evaluate whether the interests served by evidentiary rules justify the
limitations imposed on the defendant's constitutional right to testify. Rock, 483

U.S. at 55. Rules of exclusion “do not abridge an accused's right to present a

defense so long as they are not ‘arbitrary’ or ‘disproportionate’ to the purposes
they are designed to serve.” Scheffer, 523 U.S. at 306, citing Rock, 483 U.S. at

55.



       The rule against hearsay is predicated on the notion that untrustworthy

evidence should not be presented to a trier of fact. See Egelhoff, 518 U.S. at 42

(“Hearsay rules . . . prohibit the introduction of testimony which, though

unquestionably relevant, is deemed insufficiently reliable.”). Out-of-court

statements are traditionally excluded because those statements “lack the

conventional indicia of reliability: they are usually not made under oath or other

circumstances that impress the speaker with the solemnity of his statements; the

declarant's word is not subject to cross-examination; and he is not available in
order that his demeanor and credibility may be assessed by the jury.”

Chambers, 410 U.S. at 299. Accordingly, the Constitution should not be

interpreted in a manner that relieves a defendant from compliance with rules of
evidence and procedure that are designed to ensure both fairness and reliability.

Id. at 302.



                          CASES CITED BY MAJORITY



       The majority cites the following cases for the proposition that the

“constitutional right to present a defense has been held to ‘trump’ a number of
other state and federal rules of procedure and evidence including the prohibition

of the state rape shield statutes”: State v. Jalo, 557 P.2d 1359 (Or. Ct. App.

1976); Commonwealth v. Black, 487 A.2d 396 (Pa. Super. Ct. 1985); Tague v.

Richardson, 3 F.3d 1133 (7th Cir. 1993); United States v. Begay, 937 F.2d 515

                                         4
(10th Cir. 1991). These cases are readily distinguishable from the case now

before us and did not involve issues concerning hearsay evidence.



      The cited cases hold that evidence generally precluded by a rape shield

law may be admissible if the State either opens the door for admission of the

evidence or if the evidence is offered for purposes other than to show the victim's
moral defect or consent. See generally Jalo, 557 P.2d at 1361 (motive); Black,

487 A.2d at 400 (bias or motive). The State may open the door for evidence

concerning a victim's prior sexual behavior by presenting expert evidence of an
injured hymen or other evidence indicating that a victim has been sexually

penetrated. See generally Tague v. Richardson, 3 F.3d 1133 (7th Cir. 1993);

United States v. Begay, 937 F.2d 515 (10th Cir. 1991). The key distinction
between these holdings and the case now before us is that the proffered

evidence of prior sexual contact in the above cases was precluded only by the

rape shield laws but was otherwise admissible under the general rules of

evidence.



       The majority’s conclusion that the defendant was denied a right to present

testimony of an alternative theory explaining the hymenal tear may have been

correct pursuant to the above cases if, and only if, the defendant was prohibited,
once the condition of the hymen was made an issue, from asking the victim in

this case on cross-examination whether she had previously had consensual

sexual contact. The mere fact that evidence is not precluded by a rape shield
law does not automatically entitle the defendant to present the evidence in a

rape trial. The evidence must still otherwise be admissible. Accordingly, the

above-cited holdings would not allow admission of inadmissible hearsay and are
limited to otherwise admissible evidence being admitted under narrow exceptions

to the rape shield laws.



               UNITED STATES SUPREME COURT DECISIONS


       The majority opinion cites two United States Supreme Court decisions,

Green v. Georgia, 442 U.S. 95 (1979) (Rehnquist, J., dissenting), and Chambers

v. Mississippi, 410 U.S. 284 (1973) (Rehnquist, J., dissenting), for the proposition

                                         5
that “the constitutional right to present a defense has been held to ‘trump’ the

rule against hearsay.” Both Green and Chambers, however, merely mandated

exceptions to Georgia's and Mississippi's rules against hearsay for declarations
made against a penal interest. See Rock v. Arkansas, 483 U.S. 44, 53 (1987)

(noting Court in Chambers “invalidated State's hearsay rule . . .”). Both holdings

were narrowly tailored and premised on the “unique” circumstances of each
case. Green, 442 U.S. at 97; Chambers, 410 U.S. at 1048-49.



       The majority cites Green for the proposition that “[r]egardless of whether
the proffered testimony comes within Georgia's hearsay rule, under the facts of

this case its exclusion constituted a violation of the Due Process Clause of the

Fourteenth Amendment.” Green, 442 U.S. at 97. Green, however, is readily

distinguishable from the case now before us. In Green, the defendant (“Green”)

and a co-defendant (“Moore”) were both indicted for the rape and murder of a

victim. Moore was tried separately and sentenced to death. During Moore's trial,

the State introduced the testimony of a Thomas Pasby. Pasby testified that

Moore had confided to Pasby that Moore had killed the victim. Moore informed

Pasby that he shot the victim twice after ordering Green to run an errand.



       Green was subsequently convicted by a jury of murder. A second trial
was conducted to determine whether Green should be sentenced to death.

During the sentencing trial, Green attempted to introduce Pasby's testimony to

show that Green was not present when the victim was killed and that Green had
not participated in the victim's death. When the case was tried, Georgia

recognized an exception to the hearsay rule for declarations against pecuniary

interest but not for declarations against penal interest. Accordingly, the trial court
held that Pasby's testimony constituted inadmissible hearsay and refused to

allow Green to introduce the evidence.



       The United States Supreme Court granted certiorari and held that under
the facts of Green the exclusion of Pasby's testimony constituted a violation of

the Due Process Clause of the Fourteenth Amendment. The basis for the

Supreme Court's ruling was that the absence of an exception to the hearsay rule

for declarations against penal interest precluded Green from proffering relevant

                                          6
evidence even though "substantial reasons existed to assume its reliability." Id.

at 97.



         In Green, the Court was particularly troubled by the “unique

circumstances” of Green. Id. at 97. Pasby's testimony was admissible in

Moore's trial and the State “considered the testimony sufficiently reliable to use it
against Moore, and to base [Moore's] sentence of death upon it.” Id. Moore's

statement to Pasby was a spontaneous confession to a close friend. The

evidence corroborating the confession was ample. Id. The confession was
against Moore's interest, and there was no reason to believe that Moore had any

ulterior motive in making the confession. Under these unique circumstances, the

Court held that “the exclusion of Pasby's testimony denied the Petitioner a fair
trial on the issue of punishment.” Id.



         Similar to Green, the United States Supreme Court in Chambers v.

Mississippi, 410 U.S. 284 (1973), was confronted with a defendant's inability to

introduce evidence that a third person had repeatedly confessed orally to

committing the murder with which the defendant was charged. When Chambers

was tried, the Mississippi Rules of Evidence did not recognize an exception to

the hearsay rule for declarations against penal interest and adhered to the
common law “voucher rule.”3 The Supreme Court held that the exclusion of the

evidence constituted a violation of the Due Process Clause of the Fourteenth

Amendment. As in Green, the Court seemed troubled by Mississippi's absence

of an exception to the rule against hearsay which would allow introduction of a

declaration against penal interest when the declaration was exculpatory and

“bore persuasive assurances of trustworthiness.” Id. at 302.



         In Chambers, the Court explicitly noted that the third party's confessions

“were originally made and subsequently offered at trial under circumstances that

provided considerable assurances of their reliability.” Id. at 300. The third party
confessed to three different individuals. The confessions were made

spontaneously and to close acquaintances shortly after the murder occurred.

   3
     This rule prevents a party from impeaching its own witness; its corollary is that a party calling
a witn ess is bou nd by a nythin g the witne ss m ight s ay.

                                                   7
The confessions were corroborated by substantial independent evidence. The

declarant did not stand to benefit from disclosing his role in the murder, and the

declarant was present in the courtroom and could have been cross-examined
under oath. Id. at 300-01.



       The Court briefly noted that a rationale for the rule against hearsay is to
exclude untrustworthy testimony. Id. at 298. Where the testimony bears

persuasive assurances of trustworthiness and the testimony is exculpatory in

nature, the hearsay rule should “not be applied mechanistically to defeat the
ends of justice.” Id. at 302. Accordingly, Chambers effectively held that stringent

application of the rule against hearsay may violate fundamental standards of due

process when the rule is applied mechanistically and in a manner precluding
introduction of statements against penal interest that are both reliable and

“directly affecting the ascertainment of guilt.” Id.



       The crux of the Chambers and Green decisions is that a defendant has a

fundamental right to present reliable evidence of a third party’s confession to a

crime for which the defendant is being tried. Evidence of a spontaneous

confession by a third party that is corroborated by direct evidence satisfies a

showing of “particularized guarantees of trustworthiness” and is sufficiently
reliable to be admissible as an exception to the rule against hearsay. State v.

Bunyan, 712 A.2d 1091, 1094 (N.J. 1998). A child's off-hand and perhaps

boastful remarks, however, to other children concerning the child's sexual
prowess lack the particular guarantees of trustworthiness indicative of

statements generally admissible under the exceptions to the hearsay rule.



                   LIMITATION OF CHAMBERS AND GREEN



       The majority holds that the defendant was denied the opportunity to

present a defense pursuant to Chambers because hearsay evidence relating to
an element of the State’s case was excluded. The majority, however, fails to

recognize the limited application of Chambers articulated in subsequent

Supreme Court decisions.



                                           8
       In Montana v. Egelhoff, 518 U.S. 37 (1996), a plurality of the Court noted

the limited application of Chambers by stating:



       the holding of Chambers–if one can be discerned from such a fact-
       intensive case–is certainly not that a defendant is denied “a fair
       opportunity to defend against the State’s accusations” whenever
       “critical evidence” favorable to him is excluded, but rather that
       erroneous evidentiary rulings can, in combination, rise to a level of
       a due process violation.



Id. at 53. The limitation on Chambers was subsequently confirmed by an eight-

Justice majority, excluding Justice Stevens, in United States v. Scheffer, 523

U.S. 303, 118 S. Ct. 1261 (1998). In Scheffer, eight Justices agreed that
“Chambers specifically confined its holding to the ‘facts and circumstances’

presented in that case.” 118 S. Ct. at 1268. Both state and federal courts that

have been confronted with Chambers have explicitly limited Chambers and
Green to the facts of those cases. See Welcome v. Vincent, 549 F.2d 853, 857

(2nd Cir. 1977); Little v. Johnson, 162 F.3d 855 (5th Cir. 1998) (“In Montana v.

Egelhoff, the Supreme Court explained, ‘[T]he holding of Chambers–if one can

be discerned from such a fact-intensive case . . .’”); Barefoot v. Estelle, 697 F.2d

593, 597 (5th Cir. 1983) (“We think that Green is limited to its facts . . . .”);
Maness v. Wainwright, 512 F.2d 88, 91 (5th Cir. 1975) (recognizing factual limits

on Chambers holding); McGinnis v. Johnson, 181 F.3d 686, 693 (5th Cir. 1999);

Gacy v. Welborn, 994 F.2d 305, 316 (7th Cir. 1993); United States v. Fowlie, 24
F.3d 1059, 1069 (9th Cir. 1994) (noting that Chambers was based on addressing

antiquated rules of evidence that precluded admission of a third party’s

confession); Jones v. State, 709 So. 2d 512, 524 (Fla. 1998) (noting that
Chambers was “limited to its facts due to the peculiarities of Mississippi evidence

law which did not recognize a hearsay exception for declarations against penal

interest.”); Gudinas v. States, 693 So. 2d 953, 965 (Fla. 1997) (limiting

Chambers to “its facts due to the peculiarities of Mississippi evidence law which
did not recognize a hearsay exception for declarations against penal interest.”);

State v. Bunyan, 712 A.2d 1091, 1095 (N.J. 1998).



       Because it is clear that the application of both Chambers and Green

should be limited to the facts of those cases when applied to issues involving


                                           9
hearsay evidence, this Court should have examined the facts of those cases.

Both Chambers and Green involved: (1) declarations against a penal interest;

(2) hearsay statements in which the declarant was unavailable to testify; (3)
third-party confessions to a crime that were substantially corroborated with direct

evidence; (4) hearsay statements in which the veracity or reliability of the

statement was not questionable; and (5) situations in which the defendant would
otherwise absolutely have been precluded from introducing the evidence. I read

factor (5) as being the key consideration by the Court in both Chambers and

Green. See also Gacy v. Welborn, 994 F.2d 305, 316 (7th Cir. 1993) (noting
challenge would lie if evidentiary rules were “to blot out a substantial defense”

and direct evidence of the defense was unavailable). While both Chambers and

Green are readily distinguishable from the case now before us because direct
evidence was available to the defendant to establish the defense, I will also

address the applicability of each of the remaining factors.



                        Declarations Against Penal Interest



       Both Chambers and Green involved hearsay testimony that should have

been admissible as a declaration against the declarant’s penal interest. The

majority is now applying Chambers to a hearsay statement it classifies as a party
opponent admission. The majority, however, is unable to cite any authority for

applying Chambers and Green to issues involving hearsay statements other than

statements against interest. Courts having previously considered the application
of Chambers to other classifications of hearsay have not only declined to extend

Chambers but have also refused to extend Chambers to cases involving

statements by a party. See Gacy, 994 F.2d at 316 (refusing to apply Chambers

to party admissions).



       While the majority’s classification of the hearsay statement is beyond the

ambit of Chambers and Green, I believe that the majority erroneously equates
the hearsay in this case to a party opponent admission. The majority reaches its

conclusion by referring to the victim as a “party.” Again, the majority does not

cite any law in support of this reasoning. Moreover, the majority’s position is

inconsistent with both Tennessee law and other jurisdictions that have

                                         10
addressed the issue and held that a victim is not a party to a criminal proceeding.

See City of Chattanooga v. Swift, 442 S.W.2d 257, 258 (Tenn. 1969) (defining

the term “party” as meaning “one having a right to control proceedings, to make
a defense, to adduce and cross-examine witnesses, and to appeal from

judgment.”).



       A victim in a sexual assault case is not a party for purposes of a party

opponent admission. In State v. Antillon, 426 N.W.2d 533 (Neb. 1988), the

defendant in a child sexual assault case attempted to introduce hearsay
statements of the victim. In Antillon, the court addressed whether hearsay

evidence of a victim’s statement was admissible as a statement of a party. The

court held that a sexual abuse victim was not party to the criminal proceeding
because the victim did not possess the right “to control the proceedings, to make

a defense, to adduce and cross-examine witnesses, and to appeal from the

judgment.” Id. at 538 (citing City of Chattanooga v. Swift, 442 S.W.2d 257

(Tenn. 1969); Gibbons v. Belt, 33 N.W.2d 374 (Iowa 1948)). Moreover, the

common rationales present for admitting statements of a party are inapplicable

to the victim of a crime.



       I, therefore, disagree with the majority's assertion that a child victim to a
sexual assault crime is or should be treated in the same manner as a party for

purposes of a party opponent admission. The victim in this case did not possess

the right “to control the proceedings, to make a defense, to adduce and cross-
examine witnesses, and to appeal from the judgment.” See City of Chattanooga,

442 S.W.2d at 258.



                            Declarant Unavailable to Testify



       In both Chambers and Green, the declarants, i.e., the third parties

confessing to the crimes for which Green and Chambers were being tried, were
unavailable to testify. Had the declarants been available to testify, the hearsay

evidence would likely have been properly excluded. See Gacy, 994 F.2d at 316

(holding when direct evidence is available the constitution does not provide “an

accused the privilege of proffering, through hearsay, his self-serving

                                          11
statements. . . .”). A declarant must be unavailable to testify for the declaration

against penal interest exception to be applicable.



       As noted in the previous section, the victim in this case was a non-party.

The declarations against interest exception applies to non-parties. Accordingly,

the majority should have analyzed this issue under the exception for declarations
against interest. While such an analysis would have met one of the factors of

Chambers and Green, the hearsay exception would not apply as the declarant

was available to testify. State v. Dicks, 615 S.W.2d 126, 129 (Tenn. 1981);
Smith v. State, 587 S.W.2d 659, 661 (Tenn. 1978).



                              Corroboration or Reliability


       The majority also concludes that because the victim was “analogous to a

party” the victim's out-of-court statement was reliable because “such testimony is

quite similar to hearsay evidence which is currently admissible under Rule 803

(1.2)(A).” This logic is circular and assumes reliability without examining the

content of the statement.



       The defendant attempted to proffer hearsay evidence that the eleven-
year-old victim had stated that she had previously engaged in sexual intercourse

with an adolescent male. In examining the potential veracity or reliability of this

statement, one must examine both the content of the statement and the context
in which the statement was made. Moreover, one must also consider the age of

the declarant in this case.



       Children and teenagers may be prone to fabricate or exaggerate both the

status of their consensual sexual activity and their sexual prowess. Children may

succumb to peer pressure or fabricate stories of sexual promiscuity to be viewed

as “cool” or “mature.” The mere fact that the victim was a rape victim does not
automatically render the victim’s hearsay allegations of sexual promiscuity with

an adolescent male reliable. The victim simply may have been attempting to

impress a friend.



                                          12
         The majority further asserts the hearsay statement was “corroborated by

the non-hearsay proof” that a defense witness observed the victim kissing and

fondling the adolescent male. This evidence is analogous to evidence that the
rape shield rule was designed to prohibit. That the victim consented to “kissing

and fondling,” if true, would not indicate that the victim consented to or did have

sexual intercourse with either the adolescent male or the defendant. This
evidence corroborates nothing except the fact that the victim had an adolescent

boyfriend.



         In both Chambers and Green, the Court went through numerous factors

that supported persuasive assurance of trustworthiness concerning the hearsay

statements. In both cases the declarants had confessed to committing the
criminal acts for which the defendants were being tried. The declarant’s

statements were admissible against the declarants. In Green, the declarant's

statement was sufficiently reliable to use against the declarant and to impose a

sentence of death. Moreover, considerable direct evidence corroborated the

declarants’ confessions in Chambers and Green whereas the corroborating

evidence in the case now before us is at best circumstantial in nature and is

irrelevant to the crime charged.4



                  Preclusion from Presenting Exculpatory Evidence



         Of primary concern to the Court in both Chambers in Green was that the
absence of a hearsay exception for declarations against a penal interest

precluded the defendants from introducing reliable evidence that others had

confessed to committing the crimes for which the defendants were being tried.
Such evidence, if believed by a jury, could have the effect of exonerating a

defendant in a criminal proceeding. Accordingly, the Court in both Chambers

and Green effectively created exceptions to Georgia’s and Mississippi’s rules

against hearsay for declarations against penal interest due to: (1) the
exculpatory nature of the third parties’ confessions; (2) the confessions’



   4
    Proper “corroborating evidence” in the case now before us would have been evidence that the
witne ss a ctua lly viewe d the victim havin g inte rcou rse w ith the adole sce nt m ale, th ereb y direc tly
corrob orating the veracity of the hearsa y statem ent.

                                                     13
persuasive assurances of trustworthiness; and (3) the lack of an evidentiary rule

allowing a defendant to introduce evidence of a party’s confession to the crime

charged.


      Unlike the defendants in either Chambers or Green, the defendant in the

case now before us was not precluded by the Tennessee Rules of Evidence
from introducing evidence of the victim’s statement. Pursuant to Tennessee

Rule of Evidence 613 the defendant’s counsel could have simply elicited from

the victim whether she had ever told anyone that she had previously had sexual
contact with an adolescent male. The victim could have then either admitted

making the statement and explained the content or the circumstances

surrounding the statement or the victim could have denied making the statement.
If the victim denied making the statement, the defendant could have then

introduced the hearsay evidence for impeachment purposes pursuant to

Tennessee Rule of Evidence 613. See State v. Martin, 964 S.W.2d 564 (Tenn.

1998). The defendant, however, did not follow the established procedure in

Tennessee for introducing this type of evidence. Moreover, the statement was

not truly exculpatory in the sense that even if the victim had engaged in prior

sexual activity with an adolescent male she still could have been a victim of rape

at the hands of the defendant.


                         BURDEN ON TRIAL COURTS



      While the majority has not clearly articulated the precise new hearsay

exception created by this case, the exception would appear to be as follows:



      The rule against hearsay may be abridged whenever the rule
      against hearsay excludes evidence that may negate an essential
      element of the State's case thereby impeding a defendant's ability
      to present a complete defense.


Such a broad holding is dangerous precedent and places trial judges in a “Catch-

22” situation. Hearsay evidence is generally relevant evidence proffered to
negate an element of the State's case. The preclusion of any evidence that

tends to negate an element of the State’s case impedes a defendant’s ability to


                                        14
present a defense. Accordingly, the majority’s analysis and its failure to

articulate a precise and narrow exception to be applied in similar cases

effectively abolish our rule against hearsay and potentially abolish other
evidentiary rules such as the rape shield law which, as a matter of policy,

preclude admissibility of specific and relevant evidence.



       Trial judges may now face a difficult task in deciding the admissibility of

generally inadmissible evidence. Trial judges in a criminal proceeding when

faced with proffered hearsay evidence must: (1) decide whether the evidence is
hearsay; (2) decide whether the evidence is admissible as an exception to the

rule against hearsay; and (3) determine whether the hearsay evidence negates

an element of the State’s case. If the trial judge admits the hearsay, the trial
judge may have committed error by allowing introduction of inadmissible

evidence. If the trial judge precludes the hearsay, the trial judge, according to

the majority, may have committed reversible error by impeding the defendant’s

right to present a case. Accordingly, the trial judge faces potential error

regardless of the evidentiary ruling. Furthermore, the trial court has neither the

appellate court’s benefit of hindsight nor a complete trial record with which to

determine whether the error of admitting or the error of excluding is egregious

error or harmless error.


                                  CONCLUSION



       Chambers and Green did not technically “trump” a valid rule against

hearsay evidence. Both cases operated to create a clearly enunciated and

recognized exception to the hearsay rule for declarations against a penal
interest. The majority in the case now before us does not create a narrow and

recognized exception to the rule against hearsay for a specific type of testimony

or evidence. Absent an articulation of a new exception to the rule against

hearsay, the majority has strayed from the analysis in Chambers and Green.

Moreover, absent a recognized and articulated exception, the majority is creating

an amorphous rule that will abridge an established hearsay rule precluding

admission of unreliable and untrustworthy evidence.



                                         15
       The proper procedure in the case now before us would have been for trial

counsel to ask the victim whether she had ever told anyone that she had

previously engaged in consensual sexual activity. Counsel did not do so. Trial
counsel, not the trial court, essentially deprived Brown of the opportunity to

present an alternative explanation to the jury.



       The rule this Court fashions today allows an inadmissible hearsay remark

to be introduced and treated as substantive evidence regardless of the veracity

of the remark. The testimony in question would not have risen to the level of
substantive evidence had defense counsel followed evidentiary procedures.

This inconsistency is precisely why Tennessee Rule of Evidence 613 exists and

why such evidence should be subject to our established procedure. I, therefore,
believe that this Court need not invoke the narrow due process right to present

third-party confessions articulated in Chambers and Green merely because trial

counsel in the case now before us failed to follow established procedure. See

Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (stating relevant evidence may be

excluded “on account of a defendant's failure to comply with procedural

requirements”). While the majority’s result in this case may be desirable, the

means to accomplish this desired result at this stage of the proceedings defies

precedent and undermines our evidentiary policies of assuring reliable and
trustworthy evidence.



       For the foregoing reasons, I respectfully dissent.


       I am authorized to state that Justice Barker joins in this dissenting opinion.




                                          JANICE M. HOLDER, JUSTICE




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