RIGHT TO PRESENT A DEFENSE
Legal Standard - “The...‘right to present a defense’ is firmly ingrained in Kentucky jurisprudence, and has been recognized repeatedly by the United States Supreme Court. An exclusion of evidence will almost invariably be declared unconstitutional when it significantly undermines fundamental elements of a defendant’s defense.” Dickerson v. Com., 174 S.W.3d 451 (Ky.2005), quoting Beaty v. Com., 125 S.W.3d 196, 206-207 (Ky.2003). “It is crucial to a defendant’s fundamental right to due process that he be allowed to develop and present any exculpatory evidence in his own defense, and we reject any alternative that would imperil that right.” McGregor v. Hines, 995 S.W.2d 384, 388 (Ky.1999), (discussing physical evidence). “A trial court may only infringe upon this right when the defense theory is unsupported, speculative, and far-fetched and could thereby confuse or mislead the jury.” Beaty, at 207.
The right to present a defense includes the rights to: (1) be heard, (2) present evidence central to the defense, (3) call witnesses to testify, and (4) rebut evidence presented by the prosecution. 6th and 14th Amendments to the U.S. Constitution, Sections 2 and 11 of the Kentucky Constitution.
Constitutional Significance - As a constitutional right, the right to present a defense is more fundamental than any rule of evidence or procedure. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1972) (common law hearsay rules could not be used to deprive defendant of his right to present evidence that another person had confessed to the killing), Green v. Georgia, 442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738) (“the hearsay rule may not be applied mechanistically to defeat the ends of justice”), Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (KY rule of criminal procedure could not be used to deprive defendant of his right to prove his confession was not credible), Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988) (black defendant was deprived of right to present a defense when trial judge ruled he was not allowed to cross-examine white complaining witness on her cohabitation with a black boyfriend), U.S. v. Foster, 128 F.3d 949 (6th Cir.1997) (defendant deprived of right to present exculpatory grand jury evidence by trial court’s ruling that the witness was not “unavailable” under FRE 804(b)(1)), Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (defendant deprived of right to present a defense when not allowed to hire psychiatrist to rebut prosecution’s case for future dangerousness), Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (defendant deprived of right to present a defense when death sentence was imposed in part on basis of information in PSI report which was not disclosed to defendant and defendant had no opportunity to rebut).
Finally, one should also remember Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), in which it was held that long-standing exceptions to the hearsay rule (such as statements against penal interest) could not be upheld at the expense of the basic right to confront.
Alternative Perpetrator - The opportunity to present an “alternative perpetrator” defense is also fundamental to the right to present a defense and should be allowed if the defense can prove the alleged alternative perpetrator had both motive and opportunity, the defense does not waste the court’s time, nor is it likely to confuse or mislead the jury. “[I]f the evidence [that the crime was committed by someone else] is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford the accused every opportunity to create that doubt.” Failure to allow the defendant to make this defense was reversible error. Beaty v. Com. 125 S.W.3d 196, 209 (Ky.2003), quoting John Henry Wigmore, Evidence in Trials at Common Law, § 139 (Tiller’s rev. 1983). See also Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006), and Blair v. Com., 144 S.W.3d 801 (Ky.2004).
AVOWALS
Legal Standard – Both KRE 103(a)(2) and RCr 9.52 used to require a question-and-answer avowal made between the attorney and the witness. It said: “the witness may make a specific offer of his answer to the question.” Kentucky courts enforced this requirement quite strictly in cases such as Herbert v. Com., 566 S.W.2d 798, 803 (Ky.App.1978), Partin v. Com., 918 S.W.2d 219 (Ky.1996), and Com. v. Ferrell, 17 S.W.3d 520, 524 (Ky.2000), “an alleged error in the trial court’s exclusion of evidence is not preserved for appellate review unless the words of the witness are available to the reviewing court.”
Effective May 1, 2007, however, the rule has changed. It now says: “the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” According to Professor Underwood, this rule change brings Kentucky much more in line with most federal courts and several other jurisdictions. He writes: “After all, what matters is that the substance of the excluded evidence be apparent to the reviewing court.” Kentucky Evidence 2005-2006 Courtroom Manual, LexisNexis, 2005, p. 10. Attorney avowals are now sufficient in Kentucky, although KRE 103(b) still says that the court: “may direct the making of an offer in question and answer form.”
Avowals can also be made with documents which the court has excluded.
Necessary to Preserve Error – KRE 103(a) explicitly says that failure to make an avowal waives the issue of the excluded evidence. When evidence is being excluded, failure to make an avowal has exactly the same effect of never objecting when evidence is being introduced. For example, the error by the trial court in sustaining objections to cross-examination of a witness could not be a basis for reversal when the defendant failed to request an avowal, in Jones v. Com., 833 S.W.2d 839 (Ky.1992).
Failure to Allow - It is prejudicial error for a trial court to deny a defendant the opportunity to make an avowal. Jones v. Com., 623 S.W.2d 226 (Ky.1981), Perkins v. Com., 834 S.W.2d 182 (Ky.App.1992). The accused has a right to make a record sufficient to permit appellate review of the alleged errors. Powell v. Com., 554 S.W.2d 386, 390 (Ky.1977).
DEFENDANT TESTIFYING
A defendant has a constitutional right to testify which cannot be waived by counsel or refused by a court. Quarels v. Com., 142 S.W.3d 73 (Ky.2004). A defendant also has a statutory right to testify in his own behalf under KRS 421.225. This statute also provides that the defendant’s failure to testify “shall not be commented upon or create any presumption against him.”
A defendant is subject to the same impeachment as any other witness. Caudill v. Com., 120 S.W.3d 635 (Ky.2003). If the defendant takes the stand to testify, he has waived his 5th Amendment protection against self-incrimination and may be cross-examined regarding his pre-arrest silence. Gordon v. Com., 214 S.W.3d 921 (Ky.App.2006). If a defendant is being re-tried and testified at the first trial, an authenticated transcript of his prior testimony can be treated as “the equivalent of a deposition.” RCr 7.22.
If the defendant decides not to testify because he will be impeached by evidence which should not be allowed into the trial, he cannot preserve his objection to the ruling allowing the evidence by placing his intended testimony in an avowal. The only way to preserve an error allowing improper impeachment of the defendant is for the defendant to testify and then object to the impeachment. Hayes v. Com., 58 S.W.3d 879 (Ky.2001).
When a defendant has made a confession, the confession has been suppressed, and the defendant then testifies in trial in a way inconsistent with his suppressed confession, the defendant, (1) can be impeached with the prior confession if the confession was obtained in violation of the Fifth Amendment right to remain silent. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). But (2), cannot be impeached with the prior confession if it was obtained in violation of the Fourth Amendment right against coerced involuntary confessions. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990), Canler v. Com., 870 S.W.2d 219, 221 (Ky.1994).
The defendant cannot be cross-examined concerning evidence which has been suppressed because of a defective warrant. Roberts v. Com., 250 S.W. 115 (Ky.1923).
A defendant cannot be impeached with a conviction which is still on appeal. Tabor v. Com., 948 S.W.2d 569 (Ky.1997).
It is improper for the prosecutor to cross-examine the defendant regarding the criminal record of his companion at the time of the offense, and later refer to the companion as a “felon.” Rowe v. Com., 50 S.W.3d 216. (Ky.App.2001).
If the question of a client committing perjury arises during trial, Rule of Professional Conduct 3.3 requires defense counsel to bring the existence of a potential conflict to the attention of the court. Before the attorney does this, however, “she must in good faith have a firm basis in objective fact for her belief, beyond conjecture and speculation, that the client will commit perjury. ... Counsel must rely on facts made known to her by her client, not on a subjective belief that the client might be lying or that the client’s consistent version of events differs from other evidence.” Counsel must then state “all material acts” necessary to establish the conflict between herself and the client. Details are not necessary, “a clear statement of the nature of the problem will suffice.” The court may allow defense counsel to ask the defendant, “What do you have to say to the jury?” and then allow the defendant to proceed in narrative form. Counsel should not abandon the defendant by leaving the courtroom. Brown v. Com., 226 S.W.3d 74, 84 (Ky.2007).
DEFENSE WITNESSES
Truthfulness of Other Witnesses - A prosecutor cannot badger a defendant or other defense witnesses into characterizing prosecution witnesses as liars. Witnesses should not be asked to give opinions regarding the truthfulness of other witnesses, as that is the province of the jury. Moss v. Com., 949 S.W.2d 579 (Ky.1997), citing Howard v. Com., 12 S.W.2d 324, 329 (Ky.1928) : “Although to aid in the discovery of truth reasonable latitude is allowed in the cross-examination of witnesses, and the method and extent must from the necessity of the case depend very largely upon the discretion of the trial judge, yet, where the cross-examination proceeds beyond proper grounds or is being conducted in a manner which is unfair, insulting, intimidating, or abusive, or is inconsistent with the decorum of the courtroom, the court should interfere with or without objection from counsel. The court not only should have sustained the objections to this character of examination, but should have admonished counsel against such improper interrogation.”
Fifth Amendment - Generally, the rule is that a witness cannot be called to testify if it is known that, upon being questioned, the witness will take the Fifth Amendment and refuse to answer. See, e.g., Clayton v. Com., 786 S.W.2d 866 (Ky.1990). There is, however, an exception to that rule in cases in which the witness can be effectively cross-examined without being provoked to take the Fifth Amendment. A defense witness should not be excluded from trial merely upon the speculation that he or she might take the Fifth Amendment on cross-examination. It was reversible error to exclude the witness when the Commonwealth could have effectively cross-examined the witness without asking the questions which would have provoked the witness to invoke the Fifth Amendment privilege. Combs v. Com., 74 S.W.3d 738 (Ky.2002). Excluding a defense witness is a drastic remedy, and the trial court has limited discretion in disallowing the evidence. Id., at 743.
Improper Cross - A judgment of conviction will be reversed when the prosecutor persists in asking improper and prejudicial questions for the purpose of getting evidence before the jury which the law does not permit the jury to hear. Stewart v. Com., 213 S.W. 185 (Ky.1919), Nix v. Com., 299 S.W.2d 609 (Ky.1957), Rollyson v. Com., 320 S.W.2d 800 (Ky.1959), Vontrees v. Com., 165 S.W.2d 145 (Ky.1942), Slaven v. Commonwealth, Ky., 962 S.W.2d 845 (Ky.1997). The prosecutor’s persistent questioning about matters excluded by the court when a motion in limine was granted to the defendant required reversal in Cole v. Com., 686 S.W.2d 831 (Ky.App.1985).
A prosecutor should not be allowed to inject false issues into the case during cross-examination. Reversal was required in Woodford v. Com., 376 S.W.2d 526 (Ky.1964), when the prosecutor injected the false issue of a police chase. It was required in Coates v. Com., 469 S.W.2d 346 (Ky.1971), when the prosecutor injected the false issue of whether the defendant had trafficked in narcotics while in prison. It was required in Pace v. Com., 636 S.W.2d 887 (Ky.1982), when the prosecutor asked questions on cross-examination which were based on a factual predicate not supported by the evidence, concerning the time the defendant left his home. It was required in McClellan v. Com., 715 S.W.2d 464 (Ky.1986), when the prosecutor cross-examined a defense witness concerning whether the defendant was remorseful for killing the wrong man, when there was no evidence the defendant had ever said he killed the wrong person.
Intimidating Defense Witnesses - Prosecutorial misconduct required reversal of a murder conviction when two witnesses informed the prosecutor that they had lied in grand jury testimony and the prosecutor then promised both that he would not prosecute for perjury if they testified truthfully at trial; and then kept the promise to the one witness he called but repudiated the promise to the other who was proposed as a defense witness, causing that second witness to decline to appear and preventing the defendant from presenting exculpatory evidence. Cash v. Com., 892 S.W.2d 292 (Ky.1995). Compare, Rushin v. Com., 2003 WL 22359522 (Ky.App.2003), unpublished, in which the court found no prosecutorial misconduct when the Commonwealth threatened to indict a defense witness for perjury if she contradicted her sworn testimony to the grand jury, but the threat did not involve breaking any promise that had been made to the witness. On the other hand, it was a violation of due process and a substantial interference with the witness’ free and unhampered choice to testify when the prosecutor threatened to revoke the witness’ immunity if he testified at trial. U.S. v. Foster, 128 F.3d 949 (6th Cir.1997).
Reversal is required only when a judge’s or prosecutor’s conduct interfered substantially with a witness’s free and unhampered choice to testify. If some other reason motivated the witness’ choice not to testify or if the witness did indeed testify for the defendant anyway, then threats are deemed harmless. See Hillard v. Com., 158 S.W.3d 758 (Ky.2005), in which an objection to the prosecutor subpoenaing defense witnesses to his office and warning them about perjury was not preserved for review.
DIRECTED VERDICTS, RENEWING
Legal Standard – The test for directed verdict at trial is “the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.” Com. v. Benham, 816 S.W.2d 186, 187 (Ky.1991).
“[T]he trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence.” Benham, supra, at 187-188. See also Susan Balliet’s article: “Directed Verdicts in Kentucky: What’s Reasonable?” The Advocate, vol. 29, no. 3, July 2007, pp. 5-9.
The test for directed verdict on appellate review is, upon the trial court’s denial of a properly preserved directed verdict motion, it would still be “clearly unreasonable for a jury to find the defendant guilty.” Benham at 187, citing Com. v. Sawhill, 660 S.W.2d 3 (Ky.1983).
Must Be Specific – An unspecific, generalized motion for directed verdict will be viewed on appeal as little better than no motion at all. In order to preserve the issue for appeal, the motion must specify the grounds for the motion. Failure to state a specific ground gives the appellate court nothing to rule on. Also, CR 50.01 says, in part: “A motion for directed verdict shall state the specific grounds therefore.” Pate v. Com., 134 S.W.3d 593 (Ky.2004), Potts v. Com., 172 S.W.3d 345 (Ky.2005). Even if your objection is simply that the evidence is insufficient, try to note which element of the offense is involved (age of victim, value of property, etc.).
Timing – A motion for directed verdict may be made at the end of the Commonwealth’s case but must be made at the close of all the evidence. Kimbrough v. Com., 550 S.W.2d 525 (Ky.1977), Baker v. Com., 973 S.W.2d 54, 55 (Ky.1998). If a specific motion was made at the end of the Commonwealth’s case, a later renewal of the motion “on the same grounds” will preserve the issue without need to repeat the specifics. Hill v. Com., 125 S.W.3d 221, 230 (Ky.2004). If no defense evidence is presented, the motion need not be renewed because the court has heard no additional evidence. Scruggs v. Com., 566 S.W.2d 405 (Ky.1978). If the court hears any more evidence after the close of the Commonwealth’s case-in-chief, then the motion for directed verdict must be renewed, whether the presentation of additional evidence ends with the defense case or with the Commonwealth’s rebuttal evidence. Baker, supra. “In effect, therefore, a motion for directed verdict made only at the close of one party’s evidence loses any significance once it is denied and the other party, by producing further evidence, chooses not to stand on it.” Kimbrough v. Com., 550 S.W.2d 525, 529 (Ky.1997).
Instructions – Sometimes, in order to preserve your motions for directed verdict, you have to object to the giving of instructions also. When this is necessary depends upon whether your client may be guilty of a lesser included offense.
Kentucky courts have clearly interpreted a motion for directed verdict as a motion for acquittal on everything, i.e., on all counts. In Campbell v. Com., 564 S.W.2d 528, 530 (Ky.1978), the court said that a directed verdict is only appropriate, “when the defendant is entitled to complete acquittal i.e. when, looking at the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, under any possible theory, of any of the crimes charged in the indictment or of any lesser included offenses.” Therefore, when your defense is that the evidence is insufficient to sustain a guilty verdict on any charge, your motions for directed verdict are sufficient to preserve the claim on appeal. See Combs v. Com., 198 S.W.3d 574 (Ky.2006).
On the other hand, when the evidence may support a finding of guilt on a lesser included offense, then the court cannot properly grant a directed verdict (i.e., a complete acquittal). The proper procedure is then to object to the giving of instructions on the greater offense. This will preserve the issue of the sufficiency of the evidence as to any particular charge. “The proper procedure for challenging the sufficiency of evidence on one specific count is an objection to the giving of an instruction on that charge.” Seay v. Com., 609 S.W.2d 128, 130 (Ky.1980). “[T]hat rule applies...when there are two or more charges and the evidence is sufficient to support one or more, but not all, of the charges. In that event, the allegation of error can only be preserved by objecting to the instruction on the charge that is claimed to be insufficiently supported by the evidence.” Miller v. Com., 77 S.W.3d 566, 577 (Ky.2002), Campbell v. Com., 564 S.W.2d 528, 530-31 (Ky.1978), Kimbrough v. Com., 550 S.W.2d 525, 529 (Ky.1977). It then becomes necessary to object to giving instructions on the greater charge and to tender to the court instructions on the lesser offense which may be supported by the evidence. Kimbrough v. Com., 550 S.W.2d 525 (Ky.1977), Campbell v. Com., 564 S.W.2d 528 (Ky.1978), Baker v. Com., 973 S.W.2d 54 (Ky.1998), Miller v. Com., 77 S.W.3d 566 (Ky.2002), Combs v. Com., 198 S.W.3d 574 (Ky.2006).
Guilty Verdict - It is never proper for a trial court to direct a verdict of guilty when there is a plea of not guilty, despite the fact that evidence of the defendant’s guilt may be both convincing and entirely uncontradicted. Taylor v. Com., 125 S.W.3d 216 (Ky.2004).
