The State asserts that Mr. Harrison does not have standing to challenge the subpoena issued to Dr. Wilson. The State relies on what it characterizes as "the long-standing rule that only one to whom a subpoena is directed has standing to challenge the subpoena," citing State v. McClain, No. E2004-01182-CCA-R3-CD, 2005 WL 1384877, at *3 (Tenn.Crim.App. June 13, 2005) (No Tenn. R.App. P. 11 application filed); State v. Hart, No. E2003-00053-CCA-R3-CD, 2003 WL 22532500, at *14 (Tenn.Crim.App. Nov. 7, 2003), perm. app. denied (Tenn. Mar. 22, 2004); State v. Fears, 659 S.W.2d 370, 376 (Tenn.Crim.App. 1983); and Sheets v. Hathcock, 528 S.W.2d 47, 51 (Tenn.Crim.App. 1975). We have determined that this "rule," first stated without citation to any authority by Judge Charles Galbreath in Sheets v. Hathcock, is much too broad.
This evidence is properly admitted. See Buckingham v. State, 540 S.W.2d 660, 663-664 (Tenn.Cr.App. 1976) cert. denied, 429 U.S. 1049, 97 S.Ct. 759, 50 L.Ed.2d 764 (1977); Sheets v. Hathcock, 528 S.W.2d 47, 50 (Tenn.Cr.App. 1975)."
Our supreme court, in addressing a similarly worded predecessor to section 38-6-102(a), has found a TBI agent's administrative subpoena power pursuant to section 38-6-102(a) to be similar to other types of administrative subpoenas which explicitly provide that subpoenas may be issued for witnesses and "documentary evidence." State v. Hathcock, 528 S.W.2d 47, 48-49 (Tenn. 1975), overruled on other grounds, State v. Harrison, 270 S.W.3d 21 (Tenn. 2008). Accordingly, we do not find the Defendants' argument that section 38-6-102(a) is limited only to "witnesses" to be persuasive.
Harrison, 270 S.W.3d at 26. The court noted that a number of this court's cases, including the appellant's, had followed the case law established in Sheets v. Hathcock, 528 S.W.2d 47, 51 (Tenn. Crim. App. 1975), which held that "a person cannot challenge a subpoena issued to a third party." Harrison, 270 S.W.3d at 28.
The Fifth Amendment protection against compulsory furnishing of evidence against oneself does not extend to non-privileged communications to third parties. Sheets v. Hathcock, 528 S.w.2d 47 (Tenn.Crim.App. 1975). Mr. Haas' Answer is a non-privileged document of public record.
While the Fifth Amendment to the United States Constitution protects one against compulsory furnishing of evidence against oneself, it does not extend to non-privileged communications to third parties. Sheets v. Hathcock, 528 S.W.2d 47, 50 (Tenn. Cr. App. 1975). This issue is without merit.
Furthermore, the person to whom the subpoena was directed is the only person with standing to contest its validity. Shelts v. Hathcock, 528 S.W.2d 47 (Tenn.Cr.App. 1975). Defendant Jones contests the use of his pre-trial statements to officers on the ground these statements were rendered involuntary due to his intoxication.
The person to whom the subpoena was directed was the only party having standing to contest the validity of the subpoena. Sheets v. Hathcock, 528 S.W.2d 47 (Tenn.Cr.App. 1975). Many witnesses consent to come to court without the necessity of a subpoena; this does not render them incompetent witnesses.
As this court has recently observed, "[w]hile the Fifth Amendment . . . protects one against compulsory furnishing of evidence against oneself, it does not extend to non-privileged communications to third parties." Sheets v. Hathcock, 528 S.W.2d 47, 50 (Tenn.Cr.App. 1975). Accord, Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973).