Supreme Court Reviews Propriety of Conducting Late-Night Court Sessions During Trials and Clarifies Applicable Standard of Review

November 9, 2017

In a case involving questions about jury deliberations that continued into the early morning hours, the Tennessee Supreme Court determined that the defense did not adequately object to the late-night session to appeal and that the issue cannot be reviewed under the plain error doctrine. The Court clarified that the correct standard of review in a case calling into question a judge’s decision to allow a jury to deliberate into the late night hours is abuse of discretion.

In the case, the defendant, Susan Jo Walls, was convicted of murdering her husband via a murder-for-hire scheme as well as conspiracy to commit murder. She received concurrent sentences of life in prison plus twenty-one years, respectively.  The issue in this case arose when, during the afternoon of the fourth day of trial, immediately after closing arguments, the defendant began experiencing high blood pressure, was attended by a paramedic, and transported to a hospital.  The recess lasted from 4:04 p.m. until 6:30 p.m., during which there was a brief discussion among the lawyers and judge about whether the case should continue to jury instructions if the defendant returned, or if they should recess for the day.  When the defendant returned to court, the trial judge resumed the proceedings by instructing the jury on the applicable law.  Jury deliberations began at 7:13 p.m.  The jury sent a question to the trial court at 10:41 p.m.  A short time later, they requested that pizza be delivered because they were hungry.  The jurors resumed deliberations at 11:13 p.m. and returned the guilty verdicts at 1:05 a.m. the following morning. 

The defendant appealed her convictions and sentences to the Court of Criminal Appeals, arguing, inter alia, that the trial court erred by allowing the jury to deliberate late into the night and into the early morning hours of the following day.  The Court of Criminal Appeals overturned the convictions on the basis that prior precedent required ”unusual and compelling circumstances” before late-night sessions could be conducted and that such circumstances were absent from this case. 

The Supreme Court granted the State’s application for permission to appeal the appellate court’s reversal of the defendant’s convictions.  The Court reversed the decision of the Court of Criminal Appeals and concluded that defense counsel waived appellate review of this matter by failing to contemporaneously object to the late-night deliberations.  The Court concluded that the informal discussion that took place in the late afternoon was not a formal objection and that the defense had multiple opportunities—including when the defendant returned to court, when the jury instructions were read, when the jury asked a question, and when the jury asked for dinner—to object and remained silent on the issue of continuing deliberations.

The Supreme Court also decided that the issue could not be reviewed under the “plain error” rule because one of the five requisite factors had not been met.  Plain error review requires that there is a clear and unequivocal rule on the issue that the trial court did not follow. In this instance, there is no clear rule in Tennessee on how long judges should allow juries to deliberate.

To provide direction on this issue to attorneys and judges, a majority of the Court determined the appropriate standard of review for future cases involving late-night jury deliberations is abuse of discretion.

Justice Sharon G. Lee filed a separate opinion in which she agreed that the defendant was not entitled to relief. She dissented from the Court’s decision to proceed further and issue an advisory opinion regarding the appellate standard of review regarding late-night court proceedings. According to Justice Lee, the Court overreached and violated conservative prohibitions on issuing advisory opinions.

To read the majority opinion in State of Tennessee v. Susan Jo Walls authored by Justice Roger A. Page and the concurring opinion authored by Justice Sharon G. Lee, go to the opinions section of