Appellate panel hears challenge to admission of forensic interview and defendant—s confession

An appellate panel heard oral argument challenging the trial court—s admission of a child—s forensic interview and a defendant—s custodial statement in a prosecution for sexual offenses against a minor.

At the hearing, defense attorney Mr. Haas argued the trial judge should have struck the forensic interview because, he said, the child—s testimony at trial left her "not available for cross examination" on the elements of the offenses and thus undermined the trustworthiness findings made under Tenn. Code Ann. § 24-7-123. He also told the court that detectives falsely told his client that the lab had found the defendant—s DNA on two items of the victim—s clothing and that the lie rendered the subsequent statement involuntary.

The argument focused on two linked legal questions: whether a witness who testifies but declines or is unable to answer specific questions about the elements of alleged offenses is "available for cross-examination" under the statute and the confrontation clause; and whether detectives— alleged misrepresentations about DNA evidence overbore the defendant—s will so that his statement should have been suppressed.

"If we're not allowed to cross examine her on the elements at the pretrial hearing, then we have to be able to go back and then strike that forensic interview during the trial if the child does not testify under oath to at least something," Mr. Haas told the panel. He repeatedly pressed that the forensic-interview statute—s trustworthiness checklists are hollow if the State may introduce the interview when the child later refuses to testify to the elements at trial. He also urged the court to consider case law he cited (including State v. Smith) that asks whether police conduct was sufficient to "overbear the petitioner's will to resist and bring about confessions not freely self-determined."

The prosecutor, Abigail Hornsby, told the court the trial judge properly applied the statutory factors and concluded the recorded forensic interview was trustworthy. "The victim authenticated the video, appeared for cross examination, and although she the fact that defense counsel was able to thoroughly impeach her and do a good job of impeaching her does not mean that she was not available for cross examination, and it did not violate the defendant's confrontation rights," Hornsby said, summarizing the trial court—s findings and the state—s view of the controlling precedent.

Hornsby also urged the court to evaluate the voluntariness of the custodial statement under the totality of the circumstances. She noted the defendant was advised of his Miranda rights, signed a waiver, had prior familiarity with at least one detective, was given breaks during a roughly two-hour interview, and later made admissions. On the question whether misrepresentations by police alone render a confession involuntary, she said appellate law requires an assessment of whether the officer—s conduct overbore the suspect—s will.

Both counsel referenced specific trial facts. The victim was described as about 10 years old at the time of the alleged abuse and roughly 12 at the time of trial; counsel said the forensic interview occurred the day after the mother reported the matter. Defense counsel told the court the TBI lab report dated December 2020 showed no matching DNA and that the interview occurred in October or November 2021, while the state said the lab and timing facts did not alter the voluntariness analysis.

Judges on the panel asked several questions about when a witness—s courtroom testimony becomes legally "unavailable" and when the trial court must revisit its pretrial trustworthiness ruling. The panel did not announce a decision during the argument; the clerk closed the docket and reminded counsel of upcoming cases scheduled for the next day.

The appeal centers on: admission of the recorded forensic interview under Tenn. Code Ann. § 24-7-123; whether the child—s trial testimony rendered the interview untrustworthy or the child unavailable; and whether alleged false statements by detectives about DNA evidence made the defendant—s custodial statement involuntary. The panel will consider those questions on the appellate record and briefing.

Votes at a glance: none recorded—the hearing was oral argument only.