Total Recall? Court Of Criminal Appeals Of Tennessee Notes That Rule 602 Merely Requires Personal Knowledge In Labor Day Case

September 7, 2009

Like its federal counterpart, Tennessee Rule of Evidence 602 provides in relevant part that “[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” And, as the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Johnston, 2009 WL 2733523 (Tenn.Crim.App. 2009), makes clear, all this rule requires is that a witness testifying about an event actually observed the event; it does not require total recall.

In Johnston, Jimmy Darrell Johnston, was found guilty of violation of the Motor Vehicle Habitual Offender’s Act based upon allegedly driving a truck and causing an accident over Labor Day weekend in 2007. Johnston’s defense at trial had been that his wife was driving the truck, and this claim was somewhat controverted by the testimony of Billy Cutshaw. Cutshaw testified at trial that, inter alia,

he drove past the accident and saw a man walking down the road. Mr. Cutshaw did not have a present recollection of the man’s appearance other than he was a Caucasian in his forties. Mr. Cutshaw stopped his vehicle and asked the man if he was involved in the accident. The man said that he was and that he was going to get a tractor so that he could pull his truck out of the ravine. The man told Mr. Cutshaw that no one had been hurt in the accident. Mr. Cutshaw told the man that he had called 911, and the man continued walking down the road.

After Johnston was convicted, he appealed, claiming, inter alia, that

the trial court erred in allowing Mr. Cutshaw to testify when he could not identify Defendant at trial as the man Mr. Cutshaw met on the day of the accident on Lick Hollow Road. Relying on Rule 602 of the Tennessee Rules of Evidence, Defendant contend[ed] that Mr. Cutshaw did not have “personal knowledge” of the vehicle accident because he could not identify Defendant at trial as the man with whom he spoke on September 4, 2007.

The appellate court disagreed, concluding that

Mr. Cutshaw testified that he was driving on Lick Hollow Road on September 4, 2007, when he spotted a truck down an embankment. Mr. Cutshaw called 911 to report the accident. Mr. Cutshaw drove on and spotted a man walking down the road. The man acknowledged that he had been involved in the wreck of the pick-up truck and was going to retrieve a tractor in order to pull the truck up the embankment. There is no dispute that Mr. Cutshaw had personal knowledge of these facts. Accordingly, Mr. Cutshaw’s testimony was consistent with Rule 602 of the Tennessee Rules of Evidence.

I agree with this conclusion. As the Advisory Commission Comment to Rule 602 notes, “[b]asic to relevancy concepts is that a witness must know about the subject matter of testimony. This is the familiar requirement of first-hand knowledge.” Rule 602 is a rule of knowledge, not memory.

-CM