On April 24, 2025, Governor Bill Lee signed Senate Bill no. 0856/House Bill no. 0854, passing a law that substantially relaxes the Tennessee Rules of Evidence in bail hearings. The new law allows magistrates and judges to consider so-called “reliable hearsay” into evidence in bail hearings. This change marks a significant shift in public policy in Tennessee. Here is what you need to know.
What is a Bail Hearing?
In Tennessee, a bail hearing is a proceeding where a magistrate or judge determines whether a defendant should be released from jail pending a trial. If the magistrate finds that the defendant should be released, the magistrate then decides the terms and conditions of the release. For example, bail may be set at $20,000.00 and conditioned upon a defendant wearing a GPS ankle monitor.
During a bail hearing, judges are to consider various factors relating to the defendant. These factors, which are set forth by statute, include the defendant’s length of residence in the community, employment history, prior criminal record, whether the defendant was on release for another pending offense, the nature of the offense in question, safety of the community, and substance use / mental health issues.
The Difference Between the Old and the New
Prior to this change, bail hearings were to be conducted like any other court hearing. Evidence was to come in through the witness stand. Witnesses had to testify live, in person, in the courtroom. Witnesses were subject to cross examination. This means that the judge had to allow the defense attorney to ask the witness questions and bring out additional facts that may favor the defendant.
The new law allows judges to consider so-called “reliable hearsay” evidence. This means that witnesses no longer have to come to court. This means that defense attorneys no longer get to cross examine state witnesses. According to the Tennessee Rules of Evidence, hearsay is an out-of-court statement used in court to prove the truth of the matter asserted. Generally, hearsay is inadmissible, but there are exceptions. Those exceptions are well established and set forth in the Tennessee Rules of Evidence. Tennessee’s Rules of Evidence are very specific when it comes to hearsay exceptions. There are years of caselaw interpreting these rules. Efforts have been made to make these exceptions as objective as possible. By telling judges that they can consider “reliable hearsay”, the general assembly has essentially done away with one of the most important sections of the Tennessee Rules of Evidence making it easier for the state to request high bonds and onerous conditions of release.
What is Reliable Hearsay?
What is reliable hearsay? That is the ten-thousand-dollar question. Nobody knows. It is whatever the judge hearing the case wants it to be. The general assembly did not give any guidance to the courts on this. It is totally at the discretion of the court. That means that this rule will be inconsistently applied across the state. One judge may think that police reports or witness statements to police are reliable hearsay, where some judges will not. Consistency in application has always been the hallmark of the Tennessee Rules of Evidence. No matter what court attorneys went to, we knew that the court, the state, and the defense would all be operating under the same set of rules.
Under this new law, the rules of the game have changed in bail hearings, and no one knows what the new rules are. Worse yet, the rules will be different in every courtroom in the state.
How Will It Be Used?
The new law was clearly written to confer an advantage to the state. How do we know this? The law permitting reliable hearsay is followed by the caveat “so long as the defendant is accorded an opportunity to rebut the hearsay”. If there was any consideration that the defendant would seek to introduce reliable hearsay, the caveat would read, “so long as the opposing party is accorded an opportunity to rebut the hearsay.” This was not an oversight. It is being followed closely by the Tennessee District Attorney General’s Conference.
We can expect state prosecutors to attempt to get in any hearsay evidence that will benefit them in getting as high a bond as possible. Where in the past they would have to call an alleged victim to testify in court, expect them now to try and introduce an affidavit or simple written statement. Where the state used to be required to introduce certified copies of a defendant’s convictions, expect them now to offer NCIC reports that are inaccurate and unvetted (in fact, the state has already said they are going to try this on the Tennessee District Attorney General’s website). Expect prosecutors test the waters in every courtroom in the state with the primary goal of robbing the defendant of his right of cross examination.
What Can Defense Attorneys Do?
While some may see this new law as detrimental to defendants and solely benefiting the state, the truth is that the law can benefit both the state and the defendant. Our criminal defense attorneys at Patton | Pittman have reviewed this law and recognized several key mistakes that were made in its drafting. Our expert criminal defense team has already devised strategies to use the state’s change to the law against them. In fact, within hours of this new law passing, we have drafted new language to be included in all of our bail motions to protect our clients from the unfair practices that this law inevitably invites.
If you or a loved one has a pending bail issue, consult with one of our highly trained criminal defense attorneys at Patton | Pittman. Contact us today at (931) 361-4477 to schedule your consultation by phone or at our Clarksville office.