## Facts

- David Banks was charged in Tennessee state court with attempted rape of a minor, aggravated sexual battery, and child abuse arising from allegations involving a child victim.
- At trial, Banks called Jane Cain, an employee of the Tennessee Department of Children’s Services (DCS), as a defense witness.
- Cain had prepared a DCS note regarding the child victim. The note reflected that the child had been referred to counseling and mentioned behavioral issues, including “lying.”
- Cain testified that she had only brief interaction with the child victim.
- Cain acknowledged the note was not based on her own sustained observations of the child and was not based on personal knowledge of the child’s truthfulness.
- Cain testified she could not remember exactly why she wrote that the child was “lying,” but indicated the notation came from conversations with the child’s mother and the child’s school principal and assistant principal.
- The State objected to the defense using Cain and the note to suggest the child victim was untruthful, arguing the evidence was improper character evidence and that Cain did not know the child well enough to offer an opinion about truthfulness.
- The trial court sustained the objection and excluded Cain’s testimony about the “lying” notation and excluded the note.
- Banks was convicted. He appealed, challenging the exclusion of the impeachment evidence.

## Issues

1. Whether the trial court erred by excluding a DCS employee’s note and related testimony that the child victim had behavioral issues including “lying,” when the witness had only brief contact with the child and relied on information from third parties.
2. Whether the exclusion of that evidence required reversal of Banks’s convictions.

## Decision

- The Tennessee Court of Criminal Appeals affirmed the trial court’s evidentiary ruling.
- The court held the trial court acted within its discretion in excluding the note and testimony because Cain lacked an adequate basis to offer character-for-truthfulness opinion or reputation evidence about the child victim.
- The court also agreed that the proposed impeachment raised hearsay concerns because Cain’s “lying” notation was based on what others told her rather than her own knowledge.
- Banks’s convictions were affirmed.

## Legal Principles

- Evidence attacking a witness’s character for truthfulness through opinion or reputation requires a foundation showing the character witness has sufficient familiarity with the person or the person’s reputation.
- A witness who has only brief contact with the subject and bases an assessment of truthfulness mainly on statements from others generally lacks the needed foundation for admissible opinion or reputation testimony.
- Out-of-court statements offered to prove a witness is untruthful may be excluded as hearsay when no applicable exception applies.
- Trial courts have broad discretion over evidentiary rulings, and an appellate court will not reverse absent an abuse of discretion and resulting prejudice.

## Conclusion

The court affirmed Banks’s convictions, holding that the trial court properly excluded the DCS note and Cain’s related testimony because Cain lacked a sufficient basis to offer character evidence about the child victim’s truthfulness and the proposed impeachment depended on third-party statements raising hearsay and reliability problems.


State v. Banks, 2017 Tenn. Crim. App. LEXIS 129 (2017)