Tisinger v. State: Delaware Supreme Court Re-Affirms the “Bench-Trial Hearsay Presumption” and Refines Brady Disclosure Duties Where Prejudice Is Absent

Introduction

Dominique Tisinger appealed his 2016 convictions for weapons offenses after a bench trial in the Delaware Superior Court. The case eventually reached the Delaware Supreme Court on a Rule 26(c) record—meaning two successive appellate attorneys concluded there was no non-frivolous issue to pursue. Despite this, Tisinger personally raised two points: (1) an alleged Brady violation for failure to disclose the name of an eyewitness (“Auto Zone Witness”), and (2) an evidentiary challenge to the admission of that witness’s out-of-court statements.

The Supreme Court accepted supplemental briefing, reviewed the entire record, and ultimately affirmed. In so doing, it articulated two clarifying principles that now stand as fresh touchstones for Delaware criminal practice:

Bench-Trial Hearsay Presumption: When a judge sits as fact-finder, the court is presumed to consider any admitted hearsay only for permissible, non-substantive purposes unless the record shows otherwise.
Brady Materiality & Prejudice Requirement: Failure to disclose a witness’s identity does not constitute a constitutional violation unless the defendant demonstrates how that disclosure would have been favorable and prejudicially withheld.

Summary of the Judgment

• The Court granted both appointed counsels’ motions to withdraw under Supreme Court Rule 26(c) after its own review found no meritorious appellate issues.
• The alleged Brady violation failed under plain-error review: Tisinger did not show materiality or prejudice.
• The hearsay claim likewise failed: the Superior Court explicitly limited its reliance on the Auto Zone Witness’s statement to explain police conduct, and the Court invoked the “bench-trial hearsay presumption.”
• Consequently, the Superior Court’s judgment—ten years’ incarceration followed by supervision—was affirmed in full, rendering the motion to withdraw moot.

Analysis

A. Precedents Cited and Their Influence

Brady v. Maryland, 373 U.S. 83 (1963) – Sets the due-process obligation for prosecutors to disclose exculpatory or impeaching evidence. The Court applied the familiar three-prong test (favorable, suppressed, prejudicial) and concluded none were satisfied.
Wright v. State, 91 A.3d 972 (Del. 2014) – Delaware’s leading case elaborating the Brady standard. The Court quoted Wright for the need to establish prejudice and used it to dismiss Tisinger’s argument.
Kurzmann v. State, 903 A.2d 702 (Del. 2006) – Provides the rebuttable presumption that a judge sitting alone disregards inadmissible evidence. Tisinger could not overcome this presumption.
Sanabria v. State, 974 A.2d 107 (Del. 2009) – Endorses the “background context” exception allowing officers to explain actions by referencing information received. The Court analogized to Sanabria to justify limited admissibility.
Penson v. Ohio, 488 U.S. 75 (1988); Anders v. California, 386 U.S. 738 (1967); McCoy v. Court of Appeals of Wis., 486 U.S. 429 (1988) – Together provide the constitutional framework for “no-merit” briefs, mirrored in Delaware’s Rule 26(c). Cited to confirm that both sets of counsel complied with professional obligations.
Foster v. State, 961 A.2d 526 (Del. 2008) – Source of abuse-of-discretion standard for evidentiary rulings; applied to the hearsay challenge.

B. Legal Reasoning

Rule 26(c) Framework. The Court first ensured compliance with the two-tier Penson/Anders approach: (a) counsel’s thorough record review, and (b) the Court’s own independent screening for “arguably appealable” issues.
Plain-Error Review of the Brady Claim. Because Tisinger never objected below, only plain error could warrant reversal. The Court found:
- No “favorable” evidence: The undisclosed name of the Auto Zone Witness, by itself, did not exculpate or impeach.
- No prejudice: Tisinger failed to articulate how learning the name would have changed trial strategy (e.g., ability to subpoena or impeach).
Therefore, even if suppression occurred, it was not material.
Bench-Trial Hearsay Presumption. Delaware Rule of Evidence 801/802 ordinarily bars hearsay. However, when the trier of fact is the judge herself, Delaware jurists presume she separates inadmissible from admissible content. The Superior Court explicitly stated it was considering the witness’s statements only to explain police pursuit, not for their truth. Lacking contrary evidence, the Supreme Court applied the Kurzmann presumption and upheld the ruling.

C. Impact on Future Litigation

Hearsay in Bench Trials: Defense counsel in Delaware must now reckon with a fortified presumption that judges properly cabin hearsay when sitting without a jury. Overcoming that presumption will require a clear record demonstrating the judge relied substantively on the hearsay.
Brady Claims Involving Witness Identities: Merely withholding a witness’s name will not suffice; defendants must show how the absence of identity impeded a concrete defense tactic or created impeachment value. The ruling elevates the materiality and prejudice thresholds in such contexts.
Rule 26(c) “No-Merit” Filings: The Court’s insistence on its own adversary-independent review signals continued vigilance. Appellate counsel can rely on this opinion as procedural guidance when preparing similar submissions.
Police “Information Received” Testimony: Re-affirmation of Sanabria suggests prosecutors can present limited out-of-court statements to explain police conduct, especially where the fact-finder is a judge.

Complex Concepts Simplified

Brady Violation: A constitutional breach where prosecutors hide evidence that could help the defendant. To win, the defendant must show (1) the evidence was favorable, (2) it was suppressed, and (3) the suppression mattered (caused prejudice).
Plain-Error Review: If an issue was not raised during trial, an appellate court will reverse only if the error is obvious and affects substantial rights.
Hearsay: An out-of-court statement offered to prove the truth of its content. Usually inadmissible unless an exception applies, or (as here) it is introduced for a non-truth purpose.
Bench Trial vs. Jury Trial: In a bench trial the judge decides both law and facts. Courts presume judges ignore inadmissible evidence, whereas juries require stricter evidentiary policing.
Rule 26(c) Brief: Delaware’s analogue to an “Anders brief.” If appellate counsel thinks an appeal is frivolous, she files a motion to withdraw with a brief outlining any potential but ultimately non-meritorious issues, allowing the client and court to review.

Conclusion

The Delaware Supreme Court’s decision in Tisinger v. State solidifies two practical guideposts for criminal litigation: (1) judges conducting bench trials are trusted, absent contrary proof, to segregate hearsay used merely to explain police actions; and (2) Brady challenges resting solely on nondisclosure of a witness’s identity will fail without a demonstrable showing of material benefit and prejudice. Beyond resolving Tisinger’s individual appeal, the opinion clarifies the evidentiary and constitutional contours faced daily by Delaware trial lawyers and reinforces the supervisory role of Rule 26(c) in safeguarding defendants’ appellate rights.