Make a good record on conditional guilty pleas
Recently, we’ve seen a number of final judgments which do not have the condition on which the plea is made reflected in
the judgment or cases which say they are based on a conditional guilty plea, but do not specify the issue being appealed
either in the judgment or on the videotape.
RCr 8.09 states that when a defendant enters a conditional plea, the conditions must be written. When entering a conditional
guilty plea, PLEASE make sure to note on the record the condition(s) under which the plea is taken and make sure that the
conditions are noted in the final judgment.
Defendant’s testimony to develop standing at suppression hearings cannot be used against a defendant at a trial.
If the Commonwealth’s Attorney in your area wants to use the defendant’s testimony in this way, OBJECT and cite to
Simmons v. United States, 390 U.S. 377, 393-394 (1968). In that case, the Supreme court said “a defendant is ‘compelled’ to
testify in support of a motion to suppress only in the sense that if he refrains from testifying he will have to forego a benefit,
and testimony is not always involuntary as a matter of law simply because it is given to obtain a benefit. However, the
assumption which underlies this reasoning is that the defendant has a choice: he may refuse to testify and give up the
benefit. When this assumption is applied to a situation in which the ‘benefit’ to be gained is that afforded by another
provision of the Bill of Rights, an undeniable tension is created. . . . .We find it intolerable that one constitutional right
should have to be surrendered in order to assert another.”
The Kentucky case to cite is Hayes v. Commonwealth, 175 S.W.3d 574 (Ky. 2005). In that case, the Kentucky Supreme Court
cited the “intolerability” language from Simmons. The court also noted that Hayes had not received a ruling on his
suppression motion before announcing ready for trial.
In other words, make sure you get rulings on suppression motions, think about possibly doing a motion in limine based on
Simmons and Hayes to prevent the prosecution from using your client’s testimony to establish standing against him,
OBJECT when he or she does it, and make sure you get a ruling on that objection.
Short reminders
Reyes v. Commonwealth, 764 S.W.2d 62 (Ky. 1989), holds that defendants can enforce specific performance of plea bargains
against both prosecutors and judges.
Anderson v. Commonwealth, 864 S.W.2d 909 (Ky. 1993), holds that in a Brady/discovery situation, knowledge from records
of other state agencies is imputed to the Commonwealth.
