I. DISPOSITION OF APPEALS

216

Rule 36: Relief; Effect of Error.

(a) Relief To Be Granted; Relief Available.  The Supreme Court, Court of Appeals, and Court of Criminal Appeals shall grant the relief on the law and facts to which the party is entitled or the proceeding otherwise requires and may grant any relief, including the giving of any judgment and making of any order; provided, however, relief may not be granted in contravention of the province of the trier of fact. Nothing in this rule shall be construed as requiring relief be granted to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error.

(b) Effect of Error.  A final judgment from which relief is available and otherwise appropriate shall not be set aside unless, considering the whole record, error involving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process. When necessary to do substantial justice, an appellate court may consider an error that has affected the substantial rights of a party at any time, even though the error was not raised in the motion for a new trial or assigned as error on appeal.

Advisory Commission Comments.

Subdivision (a). This subdivision makes clear that the appellate courts are empowered to grant whatever relief an appellate proceeding requires. In addition, this subdivision states that the appellate court should grant the relief to which a party is entitled. The last sentence of this rule is a statement of the accepted principle that a party is not entitled to relief if the party invited error, waived an error, or failed to take whatever steps were reasonably available to cure an error. This subdivision also makes clear that an appellate court should not grant relief if in so doing it would contravene the province of the trier of fact.

Subdivision (b). This subdivision deals with the very difficult question of determining whether an error is harmless or prejudicial. The principal thrust of this subdivision is that the harmful effect of an error is measured by the effect the error had on the judgment entered. Under this rule an error is prejudicial if it "more probably than not" affected the judgment. This rule also requires reversal of a judgment when affirmance would be prejudicial to the judicial process. Although this concept cannot be fully defined, it certainly would include situations in which, for example, an accused was denied the effective assistance of counsel, or the decisionmaker was obviously biased, or there was improper discrimination in jury selection.

Advisory Commission Comments [2009].

A second sentence is added to Rule 36(b) incorporating the plain error doctrine. The initial sentence state the harmless error doctrine.

See Tenn. R. App. P. 13(b) on consideration of issues not presented for review.

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