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RULE 43. EVIDENCE

July 25, 2011

RULE 43.01: EVIDENCE AT TRIALS.

In all actions at law or equity, the testimony of witnesses shall be taken pursuant to the Tennessee Rules of Evidence. Also, for good cause shown in compelling circumstances and with appropriate safeguards, the court may permit presentation of testimony in open court by contemporaneous audio-visual transmission from a different location. [As amended by order filed January 25, 1991, effective July 1, 1991; and order filed January 31, 2002, effective July 1, 2002.]

RULE 43.02: EVIDENCE AT MOTION HEARINGS.

When a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. [As amended by order entered January 25, 1991, effective July 1, 1991.]

RULE 43.03: ORDER OF EXPERT TESTIMONY.

In trials involving conflicting expert testimony and with the consent of all parties, courts may reorder the ordinary proof process to increase the likelihood that jurors will be able to comprehend and evaluate expert testimony. [Added by order filed January 31, 2003, effective July 1, 2003.]

RULE 43.04: MATTERS CONSIDERED BY COURT.

When parties supporting or opposing motions before the court present materials not previously filed with the court, such materials shall be submitted as follows:

(1) All or part of any deposition taken pursuant to Rules 30 or 31 shall be accompanied by an original or photocopy of the certification of the officer taking the deposition.

(2) All or part of any interrogatory answers or objections thereto obtained pursuant to Rule 33 and all or part of any response or objection to a Rule 36 request for admission shall be accompanied by the original signature of the responding party or attorney, or a photocopy thereof.

(3) Any document obtained pursuant to a Rule 34 request for production of documents shall be accompanied by a copy of the request for production and either a copy of the response thereto or a certificate of authenticity from the party or attorney presenting the document to the court.

The submitting party shall also include the title page of the foregoing documents showing the complete caption for the action as required by Rule 10.01. The submission shall include all relevant definitions provided in the original document.

In ruling on any motion, the court shall consider only those documents and other materials that have been filed with the court as provided herein or that have been presented to the court in accordance with Rules 43.01 or 43.02, or matters that have been stipulated by the parties. [Added by order filed December 10, 2003; effective July 1, 2004.]

Advisory Commission Comments [1991]. The first section [43.01] is amended to cross-reference the Tennessee Rules of Evidence. The second section [43.02] was formerly numbered 43.05. Original 43.06 on compensating interpreters is moved to Rule 54.04(3). All other sections in the original rule are deleted because inconsistent with or superfluous in light of the Tennessee Rules of Evidence.

Advisory Commission Comments [2002]. The amendment permits testimony of a witness outside the courtroom to be transmitted by contemporaneous audio-visual means to the trier of fact. Note that three conditions must be satisfied: good cause, compelling circumstances, and adequate safeguards.

Advisory Commission Comments [2003]. The new procedure in Rule 43.03 is desgned to assist jurors in understanding conflicting expert testimony by providing judges and lawyers with considerable flexibility in the scheduling and mode of that testimony. On rare occasions, it may be helpful if expert testimony on the same subject be given in the same block of time rather than separated by days or weeks and given during each party’s proof process. For example, in a tort case where both sides will present expert testimony on causation, jurors may benefit if the plaintiff’s causation experts testify, followed immediately by the defendant’s causation experts. This procedure may give the jurors a better way of resolving the issue of causation. Because of the tactical, financial, scheduling, and procedural issues raised by this new procedure, it can only be utilized with the consent of the court and all parties.

Advisory Commission Comments [2004]. New Rule 43.04 limits a trial court’s consideration on motion rulings, particularly motion for summary judgment rulings, to certain designated materials. The amendment complements existing Rule 56.04.

RULE 43A.01: JUROR NOTETAKING.

Jurors shall be instructed that they may take notes during the trial and deliberations. The court shall provide suitable materials for this purpose. Jurors shall have access to their notes during recesses and deliberations. After the jury has rendered a verdict, the notes shall be collected by court personnel who shall destroy them promptly. [Added effective July 1, 2003.]

RULE 43A.02: JUROR NOTEBOOKS.

When the court deems it helpful in a particular case, jurors may be provided with notebooks to use in collecting and organizing appropriate materials, including such items as jury instructions, written exhibits, and the juror’s own notes. Counsel should be apprized of this procedure and invited to prepare exhibits and other materials in a way that facilitates their inclusion in the jurors’ notebooks. At the end of the trial, the notebooks should be collected by court personnel and their contents destroyed, unless the court instructs to the contrary. [Added effective July 1, 2003.]

RULE 43A.03: JUROR QUESTIONS OF WITNESSES.

In the court’s discretion, a juror desiring to propound a question to a witness may be permitted to do so. The juror must put the question in written form and submit it to the judge through a court officer at the end of a witness’ testimony. The judge shall review all such questions and, outside the hearing of the jury, shall consult the parties about whether the question should be propounded. The judge, in his or her discretion, may ask the juror’s question in whole or part and may change the wording of the juror’s question before propounding it to the witness. The judge may permit counsel to ask the question in its original or amended form in whole or part, in the judge’s discretion. When juror questions are permitted, early in the trial jurors shall be instructed about the mechanics of asking a question. In addition, the jurors shall be instructed to give no meaning to the fact that the judge chose not to ask a question or altered the wording of a question submitted by a juror. A juror’s question shall be anonymous, so that the juror’s name is not included in the question. All jurors’ questions, whether approved or disapproved by the court, shall be retained for the record. [Added effective July 1, 2003.]

Advisory Commission Comment [2003]. This new rule adds three procedures designed to assist jurors in the effective performance of their important functions.

Rule 43A.01 specifically states that jurors are allowed to take notes during the trial and to use those notes during deliberations. The court is to provide the necessary materials and to collect and destroy the notes at the end of the trial. The premise of this rule is that jurors, like judges and lawyers, may find it helpful to take notes during the trial in order to assist in remembering the evidence.

Rule 43A.02 authorizes the court, in its discretion, to provide jurors with notebooks to use in collecting and organizing the various materials presented to the jury. The notebook might include such items as jury instructions, copies of exhibits (photographs, charts, etc.), basic definitions of words used in the trial, and any other appropriate materials.

The court is given the discretion whether to use notebooks. The court might want to ask counsel to assist in the preparation of the notebooks. The content and financial aspects of the notebooks might be discussed and resolved during pretrial conference. After the trial, the court may collect the notebooks and destroy any contents that will not be used again, although the exact disposition is left to the court’s discretion.

Rule 43A.03 gives the court the discretion to allow jurors to ask questions of witnesses. This rule is designed to assist jurors in their understanding of evidence and to make them feel more involved in the trial process. The procedure in this rule should ensure that improper questions are not propounded to witnesses. After a witness has completed testimony, a juror desiring to ask a question must submit that question in writing to a court officer who will give it to the judge. The question shall be submitted without identifying the juror who asked it. The judge then screens the question. Counsel shall be invited to comment on the propriety of the question out of the hearing of the jury. The court is given the discretion to reject or ask the question in whole or in part, to rephrase it, and to have counsel ask the question of the witness. If necessary, the court may accompany the question or the rejection of the question with appropriate jury instructions. All questions are to be retained for the record.

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