DPA TRIAL LAW NOTEBOOK

I. IN GENERAL

IN ABSENTIA

Legal Standard - RCr 8.28(4) allows trials in absentia in certain misdemeanor cases. However, the burden is on the Commonwealth to show that the defendant’s absence is intentional, knowing, and voluntary – and thus demonstrating that the defendant is waiving his right to be present at his trial. Whether the mere absence of the defendant on the day of trial is sufficient to justify such a conclusion may differ from case to case. On one hand, the inference may not be justified if the defendant has never failed to show up for court before. On the other hand, the inference may be justified if the defendant never appeared at any of his pre-trial conferences. See Donta, below. Afterward, the defendant has the right (and the burden) to show that he did not intend to waive his right to be present at his trial. Donta v. Com., 858 S.W.2d 719 (Ky.App.1993), Burns v. Com., 655 S.W.2d 497 (Ky.App.1983), Jackson v. Com., 113 S.W.3d 128 (Ky.2003).

Enhanceable Offenses - RCr 8.28(4) does not allow trials or guilty pleas on any offense listed in either KRS 189A or KRS 218A because many of the offenses in those chapters are enhanceable. This would lead one to conclude that trials in absentia should not be held on any enhanceable offense whether listed in 189A or 218A or not. See Tipton v. Com., 770 S.W.2d 239 (Ky.App.1989), a DUI case in which the court ruled that it was an abuse of discretion to accept a plea of guilty to DUI in absentia because the offense is enhanceable. Since Tipton was decided, however, the rule was modified to allow guilty pleas in such circumstances if the court receives a written waiver from the defendant.
ADJOURNMENT

RCr 9.70 provides the admonition which must be given to the jury at each adjournment. Failure to give the admonition does not necessarily require reversal if the jury has already been admonished during the same trial and if no impropriety occurs. Com. v. Messex, 736 S.W.2d 341 (Ky.1987).

ADMONITIONS

If you want the court to declare a mistrial, you need to be able to explain why an admonition would not be a sufficient remedy. Here is the rule: “There are only two circumstances in which the presumptive efficacy of an admonition falters: (1) when there is an overwhelming probability that the jury will not be able to follow the court’s admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant; or (2) when the question was asked without a factual basis and was “inflammatory” or “highly prejudicial.” Johnson v. Com., 105 S.W.3d 430, 441 (Ky.2003), quoted in Combs v. Com., 198 S.W.3d 574, 581-82 (Ky. 2006).
ADVERSARIAL BOND HEARINGS

The court must grant a motion for an adversarial bond hearing the first time a defendant requests one. RCr 4.40(1). The burden is on the defendant (that means the defendant goes first) to show that the bail set is excessive and the defendant may call prosecuting witnesses to the stand to inquire concerning anything relevant to the proper amount of bail, including the strength of the Commonwealth’s case. See the criteria in RCr 4.10, 4.12, 4.16(1), KRS 431.520, 431.525(1), and also Abraham v. Com., 565 S.W.2d 152 (Ky.App.1977), and Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed.3d 3 (1951). The case which holds that the defendant may call prosecuting witnesses in an adversarial bond hearing is Kuhnle v. Kassulke, 489 S.W.2d 833 (Ky.App.1973).

BIFURCATION

Legal Standard - KRS 532.055(1) governs verdicts in felony cases and requires bifurcation of guilt and sentencing phases, with separate hearings and separate verdicts. The statute does not cover misdemeanor trials.

So the question then becomes: What is the correct procedure when felonies and misdemeanors are tried together? In such cases, the jury retires to make only a determination of guilt or innocence. There should be no sentencing instructions, even on the misdemeanors. If the jury returns a verdict of guilty on any felony, the court follows KRS 532.055 and proceeds to the sentencing hearing, even if the defendant was also convicted of misdemeanors. If the jury only returns verdicts of guilty on misdemeanors, it then retires once again to reach a verdict on the sentence without any testimony, and with only the arguments of counsel. Com. v. Philpott, 75 S.W.3d 209 (Ky.2002).

Subsequent Offenses - Bifurcation is also necessary when the Commonwealth must also prove a 2nd or subsequent offense, or some other sentence enhancement, even in misdemeanor trials. Com. v. Ramsey, 920 S.W.2d 526 (Ky.1996), Dedic v. Com., 920 S.W.2d 878 (Ky.1996). This requirement of enhancing subsequent offenses in a separate hearing could easily lead to trifurcated trials in the case of felonies which are also subsequent offenses. For instance, a DUI 4th trial might have a guilt phase, an enhancement phase, then a sentencing phase.

PFO - One would expect that trials involving PFO charges would also be trifurcated: there would be the guilt/innocence phase, then the sentencing phase, then the PFO phase. Nevertheless, KRS 532.055(3) requires PFO evidence to be introduced in a combined sentencing/PFO hearing. This requirement has created some confusion. See, e.g., Lemon v. Com., 760 S.W.2d 94 (Ky.App.1988), Maxie v. Com. 82 S.W.3d 860 (Ky.2002). The Kentucky Supreme Court has indicated that a PFO trial is somewhere between bifurcated and trifurcated.

Reneer v. Com., 734 S.W.2d 794 (Ky.1987) was the case in which the Kentucky Supreme Court first held forth on KRS 532.055, the Truth-in-Sentencing statute which had just been passed the year before. In that opinion, the court split the difference in terms of the question of bifurcation or trifurcation by describing a “combined bifurcated” sentencing/PFO hearing. It outlined the procedure in this way: “...the jury in the combined bifurcated hearing could be instructed to (1) fix a penalty on the basic charge in the indictment; (2) determine then whether the defendant is guilty as a persistent felony offender, and if so; (3) fix the enhanced penalty as a persistent felony offender.” Reneer, at 798.

Note that this guidance from the Supreme Court requires the jury to deliberate twice during the same sentencing/PFO phase. The trial court follows KRS 532.055 prior to fixing the penalty for the underlying offenses. The court said: “The bifurcated penalty phase will decide the punishment on the specific charge after additional evidence pertaining to sentencing is heard.” Id. The trial court then turns to KRS 532.080 for the remainder of the hearing to “(2) determine then whether the defendant is guilty as a persistent felony offender, and if so; (3) fix the enhanced penalty as a persistent felony offender.” Note that the procedure is outlined in exactly this same way in the last paragraph of the Commentary to KRS 532.080.

The PFO statute also seems to require this procedure. See Com. v. Hayes, 734 S.W.2d 467 (Ky.1987), and Davis v. Manis, 812 S.W.2d 505 (Ky.1991), which interpret the PFO statute to require that the defendant first be sentenced on the underlying charge before he can be convicted as a Persistent Felony Offender.

Referring to Prior Convictions – Referring to prior convictions which will be used to enhance current charges should be reserved to the penalty phase of the trial. “No reference shall be made to the prior offense until the sentencing phase of the trial, and this specifically includes reading of the indictment prior to or during the guilt phase.” Clay v. Com., 818 S.W.2d 264, 265 (Ky.1991). Failure to do so results in “unavoidable prejudice” to the defendant. Ramsey, supra, at 528. (Indeed, in Clay, the Kentucky Supreme Court found it to be reversible error.) The exception to this is trials involving offenses in which the prior conviction must be proven in order to prove the offense itself. For example, a defendant’s prior conviction has to be mentioned and introduced during the guilt/innocence phase if the defendant is charged with Possession of a Handgun by a Convicted Felon.

Practice Tip: Bifurcated Trials. In a bifurcated trial, make a motion in limine for the judge to begin the guilt/innocence phase by reading only the underlying offenses to the jury. For example, move to inform the jury the defendant is charged with DUI, but not DUI 4th Offense.

IN CAMERA REVIEW

Practice Tip: In Camera Reviews. When the court is reviewing material in camera, make sure to move the court to put any material not provided to the defense into the record for review in the event of an appeal. See. e.g., RCr 7.24(6) and KRE 612. If the court is reviewing medical or counseling records, the material should be sealed. See, e.g., RCr 7.26 and KRE 508. In camera review of a witness’ psychotherapy records is authroized only upon receipt of evidence sufficient to establish a reasonable belief that the records contain exculpatory evidence. The prosecutor and defense counsel do not have to be present at the review. Com. v. Barroso, 122 S.W.3d 554 (Ky.2003).


CHANGE OF LAW

The substantive law which applies to any given case is the law as it was at the time of the offense. This rule is codified in the (rather tortuous) language of the first part of KRS 446.110: “No new law shall be construed to repeal a former law as to any offense committed against a former law, nor as to any act done, or penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued or claim arising before the new law takes effect.”

The procedural law which applies to any given case, however, is governed by the rules of procedure which exist at the time of the trial, not at the time of the commission of the offense. Com. v. Reneer, 734 S.W.2d 794 (Ky.1987). The latter part of KRS 446.110 says that, upon a change in law, “proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings.”

KRS 446.110 also allows a defendant to opt-in to any new provision of law which reduces or mitigates any punishment: “If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provisions may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.” In that case, the defendant needs to file notice of his “unqualified consent” to be sentenced under the new law. Com. v. Phon, 17 S.W.3d 106, 108 (Ky.2000). For example, a lot of death penalty defendants used this statute when life without the possibility of parole became a new sentencing option. St. Clair v. Com., 140 S.W.3d 510 (Ky.2004), is another example. (See also “Ex Post Facto.”)

Practice Tip: Change of Law. Make sure to research the state of the law on the exact date that the offense ocurred. Be especially careful in the summer, as many laws tend to take effect in the middle of July and will not yet be in the law books.

COMMONWEALTH, GENERALLY

“[The] interest of the Commonwealth in a criminal prosecution is not that it shall win a case but that justice shall be done. The decisions of this court provide abundant support of this principle. We have many times declared that there rests upon prosecuting attorneys the obligation to deal fairly with the accused and to recognize his legal rights as well as the rights of the Commonwealth, and that these public officials should see that the truth is disclosed and justice shall prevail.” Arthur v. Com., 307 S.W.2d 182, 185 (Ky.1957).

CONDITIONAL PLEAS

Practice Tip: Conditional Pleas of Guilty. RCr 8.09 allows conditional pleas of guilty when approved by the court. The plea must be in writing. Make sure to note on the guilty plea form: (1) that the client is NOT waiving his right to appeal, and (2) note the specific issue which the client is appealing. Put the information on the record as well. Move to have the condition placed in the final judgment. Do not enter a conditional plea of guilty and yet simultaneously have your client sign a form saying he is waiving his right to appeal.

CONTINUANCES

Legal Standard - In considering whether to grant a continuance a court must consider the length of delay, whether there have been any previous continuances, the inconvenience which may be caused by the continuance, whether the delay is the fault of the accused, the complexity of the case, and whether denying the continuance would prejudice the defendant. Snodgrass v. Com., 814 S.W.2d 579 (Ky.1991), Eldred v. Com., 906 S.W.2d 694 (Ky.1995) overruled on other grounds.

Continuances may be granted because the rules of discovery have not been followed, RCr. 7.24(9). See also Mills v. Com., 95 S.W.3d 838 (Ky.2003), in which the Commonwealth failed to disclose a witness to a robbery. In fact, in some cases they must be granted if requested. See, e.g., Anderson v. Com., 63 S.W.3d 135 (Ky.2001), in which the Commonwealth did not provide medical reports until just before trial and disclosed complaining witness statements only at the end of the first day of trial. Continuances may also be granted if the indictment does not include the names of the witnesses who appeared before the grand jury, RCr 6.08, or when the court allows the Commonwealth to amend an indictment, RCr 6.16.

Unavailable Witness - When a continuance is sought because a witness is unavailable, RCr 9.04 requires that an affidavit be offered into the record stating what the testimony of the witness would have been and the due diligence the attorney has used in order to attempt to secure the witness. The Commonwealth can then agree or disagree to allow the affidavit into evidence. If the Commonwealth disagrees, the court may grant a continuance. Failure to grant a continuance is reviewed for abuse of discretion.

Practice Tip: If the motion for continuance is overruled, make sure to enter the affidavit into the record.

Waiver - Failure to request a continuance waives the issue. Lefevers v. Com., 558 S.W.2d 585 (Ky.1977). Failure to follow the requirements of the rule waives the issue. Gray v. Com., 203 S.W.3d 679 (Ky.2006), corrected. Failure to accept a court’s offer to continue waives the issue. Neal v. Com., 95 S.W.3d 843 (Ky.2003). This is probably true even if the defendant is in custody and a continuance will only lengthen his time in jail. U.S. v. Quinn, 230 F.3d 862 (6th Cir.2000).

CONTINUING OBJECTIONS

Continuing objections are generally not the best practice, especially in light of the fact that, as of May 1, 2007, KRE 103(a)(1) now requires that objections be made “stating the specific ground of objection.” Virtually the only time when a continuing objection is safe and appropriate is when counsel objects that the witness is incompetent to testify to anything at all; for example, the testimony might violate the marital privilege, or the same irrelevant evidence is being repeated by different witnesses, or the witness is literally incompetent to testify. In any other situation, counsel should be prepared to follow RCr 9.22 and KRE 103 and state specifically the testimony objected to and specifically what objection is being made. Dickerson v. Com., 174 S.W.3d 451 (Ky.2005), Davis v. Com., 147 S.W.3d 709 (Ky.2004).
DAUBERT

Legal Standard - A proper analysis of admitting expert testimony begins with KRE 702. It says: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” This rule includes three important requirements: (1) that the witness is indeed a qualified expert, (2) that the testimony to be offered is valid, and (3) that the testimony will “assist the trier of fact.”

Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), concerns itself with the second requirement: what is valid scientific evidence? The criteria to be considered include: (1) Can it be or has it been tested? (2) Has it been subject to peer review and publication? (3) Is the potential error rate known? (4) Do standards and controls exist? (5) Is it generally accepted within the scientific community? The factors were not meant to be exhaustive and do not all necessarily apply to every type of testimony.

Daubert was expanded to include technical and other specialized knowledge as well in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), 119 S.Ct. 1167, 143 L.Ed.2d 238. Although Daubert and Kumho only applied to federal courts and some states did not adopt either decision, Kentucky adopted Daubert in Mitchell v. Com., 908 S.W.2d 100 (Ky.1995) and Kumho Tire in Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575 (Ky.2000). Kumho Tire held that “... choosing which factors to apply and the weight to give each factor are matters of trial court discretion.” At 139.

If the requirements of KRE 702 are satisfied, then the evidence is also then weighed under KRE 401 and 403, especially on the issue of whether the testimony will confuse or mislead the jury, or be just a waste of time. The court included the elements of all these rules in its analysis in Stringer v. Com., 956 S.W.2d 883, 891 (1997), which also allowed expert opinion on ultimate issues: “We now once again depart from the ‘ultimate issue’ rule and rejoin the majority view on this issue. Expert opinion evidence is admissible so long as (1) the witness is qualified to render an opinion on the subject matter, (2) the subject matter satisfies the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., (3) the subject matter satisfies the test of relevancy set forth in KRE 401, subject to the balancing of probativeness against prejudice required by KRE 403, and (4) the opinion will assist the trier of fact.”

An “ultimate issue” is, for example, whether the defendant’s speeding was the cause of the accident, or whether the drugs in the defendant’s possession were being held for sale. See Com. v. Alexander, 5 S.W.3d 104, 106 (Ky.1999), in which the expert was allowed to testify that the defendant’s speed was the cause of the accident but the testimony did not invade the province of the jury when the jury could still have decided the defendant was not guilty because he was responding to an emergency and did not hear that the emergency call had been cancelled. The manner in which the expert can give his testimony is governed by KRE 705.

Experts and Discovery - In Barnett v. Com., 763 S.W.2d 119 (Ky.1988), the court reversed a conviction for a violation of RCr 7.24(1)(b) which requires the Commonwealth, on written request, to turn over to the defense any reports generated by its experts as the result of experiments or examinations conducted by the expert. In Barnett, the serologist speculated that the defendant had washed blood off his hands and, since this testimony exceeded anything which had been provided the defendant in the reports, the case was reversed. The principle here is that the defendant is unduly surprised when the Commonwealth’s expert testifies based on a premise not formerly disclosed to the defendant.

In Vires v. Com., 989 S.W.2d 946 (Ky.1999), the Commonwealth’s expert did not prepare a report. The Commonwealth had, however, turned over the results of his investigation and his testimony was based on that. So there was no reversible error. The court also ruled that the testimony of the Commonwealth’s expert was not based on any undisclosed premise in Milburn v. Com., 788 S.W.2d 253 (Ky.1990) and Collins v. Com., 951 S.W.2d 569 (Ky.1997).

The Commonwealth was not required to provide the defendant with a list of the expert witnesses it intended to call when it provided the defendant with copies of the experts’ reports which plainly indicated the areas of their testimony and the science involved. Tamayo-Mora v. Com., 2005 WL 2318959 (Ky.2005), unpublished.

Admission of the testimony of a surprise expert was held to be harmless error in Fisher v. Com., 2005 WL 629011 (Ky.2005), unpublished, in which the defendant’s own testimony mirrored that of the expert, and the one other thing the expert testified to was an undeniable feature of the design of the firearm in question.

Parties are not required to disclose their experts in the absence of any written reports or findings. See Brown v. Com., 2005 WL 387437 (Ky.2005), unpublished, in which the Commonwealth was allowed to call a surprise expert witness on how to manufacture methamphetamine. The defendant failed to request the proper relief, which was a continuance.

In Jones v. Com., 237 S.W.3d 153 (Ky.2007), the court ruled that although an expert should not be allowed to testify to an undisclosed premise, the defendant was not required to inform the Commonwealth that his expert intended to criticize the methods of the Commonwealth’s DNA lab, when the defendant had complied with the rules of reciprocal discovery and the expert’s testimony could have been anticipated by the Commonwealth.

RCr 7.24 requires only that the relevant reports be turned over in reciprocal discovery. RCr 7.24 does not require that a party also disclose the theories, research, studies, or literature upon which the expert’s opinion will be based. Gray v. Com., 203 S.W.3d 679 (Ky.2006), Collins v. Com., 951 S.W.2d 569 (Ky.1997), Jones v. Com., 237 S.W.3d 153 (Ky.2007). Notes used to prepare reports are also not discoverable, Cavender v. Miller, 984 S.W.2d 848 (Ky.1998), see also RCr 7.24(2), unless they are used to refresh a witness’ memory while the witness is testifying. In that case, KRE 612 requires the notes to be handed over to the adverse party.

A defendant cannot be ordered to disclose the identity of his expert in the absence of any written reports or findings. Com. v. Nichols, 2007 WL 1723371 (Ky.App.2007), unpublished.

Challenging Expert Testimony - Under Daubert, the burden of proving the scientific validity of the proposed evidence is on the proponent of the evidence. Nevertheless, the Kentucky Supreme Court took judicial notice of the scientific validity of a number of types of scientific inquiry in Fugate v. Com., 993 S.W.2d 931 (Ky.1999) (DNA, except for mitochondrial), and Johnson v. Com., 12 S.W.3d 258 (Ky.1999) (microscopic hair comparison, breath testing to determine blood alcohol level, HLA blood typing in paternity tests, fiber analysis, ballistics analysis, fingerprint analysis). In the case of these types of testimony, the court need no longer hold a Daubert hearing, and the burden is on the challenger. See Susan Balliet, “Countering the So-Called ‘CSI Effect’,” The Advocate, vol. 29, no. 4, September, 2007, pp. 7-10.

Counsel should continue to make Daubert challenges when necessary. In Ragland v. Com., 191 S.W.3d 569 (Ky.2006), e.g., the case was remanded for retrial, in part, because the Daubert analysis conducted by the trial court did not include a consideration of the scientific reliability of the expert’s conclusions regarding comparative bullet analysis. In McIntire v. Com., 192 S.W.3d 690 (Ky.2006), the defendant’s conviction was reversed because the expert testified outside her range of expertise. The court ruled that she was not qualified to give an “expert” opinion to the effect that a non-abusing parent would have had to have been aware of the fact that the child was being abused. See also the developments in medical research which have caused some forms of shaken baby syndrome to be discredited, described in “Just Like Humpty Dumpty, Shaken Baby Syndrome Has Fallen Down,” by Susan Balliet and Erin Yang, The Advocate, vol. 29, no. 5, November, 2007, pp. 17-19.

DEFENDANT IN SHACKLES

This is covered by RCr 8.28(5). This should be allowed only in extraordinary circumstances and requires findings that the defendant will be violent or a flight risk. Mere signs of displeasure or disrespect from the defendant are not sufficient. The error may be less harmful, however, in proceedings in which the defendant has already been found guilty. Lovett v. Com., 2005 WL 2045483 (Ky.2005), unpublished, Barbour v. Com., 204 S.W.3d 606 (Ky.2006). However, see Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), in which the Supreme Court ruled that it was a violation of due process to routinely shackle defendants during the penalty phase of a capital proceeding.

And also make sure to object if the jury might have seen the defendant while being moved from the jail. It is the same kind of prejudice.

DEFENSE THEORIES, TYPES OF

“Practically every defense theory will fall within one of the following defense genres:

1. It never happened – (mistake, setup)
2. It happened, but I didn’t do it – (mistaken identification, alibi, setup. etc.)
3. It happened, I did it, but it wasn’t a crime (self-defense, accident, claim of right)
4. It happened, I did it, it was a crime, but it wasn’t this crime (lesser-included offenses)
5. It happened, I did it, it was a crime, but I’m not responsible (insanity)
6. It happened, I did it, it was a crime, I’m responsible, so what? (jury nullification – known in
some jurisdictions as the ‘he needed killin’’ defense)”

Cathy R. Kelly, “Trial By Design,” The Champion, vol. 26, no. 9, November, 2002, pp. 18-22.

DISCOVERY

“A cat and mouse game whereby the Commonwealth is permitted to withhold important information requested by the accused cannot be countenanced.” James v. Com., 482 S.W.2d 92, 94 (Ky.1972). “In a case where the murder is shrouded in mystery and the question of guilt hung in the balance, it will not do to permit the possibility that victory was obtained by ambush and surprise, even if we accept that the mistake was not ‘malicious.’” Barnett v. Com., 763 S.W.2d 119, 123 (Ky.1989).

Generally, evidence never turned over to the defense before trial is a more serious violation than evidence turned over too late to meet a statutory deadline. The former may require reversal, see, e.g., James v. Com., 482 S.W.2d 92 (Ky.1972), while the latter may be more likely to be reviewed on appeal by the prejudice/harmless error standard, see, e.g., Neal v. Com., 95 S.W.3d 843, 848 (Ky.2003). “A discovery violation justifies setting aside a conviction ‘only where there exists a reasonable probability that had the evidence been disclosed the result at trial would have been different.’” Weaver v. Com., 955 S.W.2d 722, 725 (Ky.1997), quoting Wood v. Bartholomew, 516 U.S. 1, 5, 116 S.Ct. 7, 10, 133 L.Ed.2d 1 (1995).

Officers and investigators are agents of the Commonwealth and any statements taken by them are in the possession of the Commonwealth regardless of whether the Commonwealth’s Attorney is personally aware of them. Anderson v. Com., 864 S.W.2d 909, 912 (Ky.1993). The prosecutor’s duty of disclosure extends to evidence in the possession of the prosecutor, his investigators, and other state agencies as well. Eldred v, Com., 906 S.W.2d 694 (Ky.1995), overruled on other grounds.

If the Commonwealth claims to have adopted “open file” discovery, it must adhere to that agreement and comply fully. Hicks v. Com., 805 S.W.2d 144 (Ky.App.1990), Barnett v. Com., 763 S.W.2d 119, 123 (Ky.1989).

RCr 7.26, which requires the Commonwealth to provide witness statements at least 48 hours prior to trial, is not reciprocal.

Neither party in a criminal action is required to disclose a witness list in pre-trial discovery. King v. Venters, 596 S.W.2d 721 (Ky.1980), Lowe v. Com., 712 S.W.2d 944 (Ky.1996). “It is our opinion that there is no authority for requiring a defendant to furnish such a list to the Commonwealth, and we are not entirely convinced that it would be free of constitutional difficulty.” King, at 721. See also Com. v. Nichols, 2007 WL 1723371 (Ky.App.2007), unpublished, for a full discussion. Nevertheless, a court may require a defendant to provide a witness list at trial, at the outset of voir dire, for the purpose of inquiring of the jurors if any of them were “close personal friends” or “related by blood or marriage” to any of the named witnesses. Hardy v. Com., 719 S.W.2d 727 (Ky.1986).

RCr 5.16(3) provides that, “any person indicted by the grand jury shall have a right to procure a transcript of any stenographic report or a duplicate of any mechanical recording relating to his or her indictment...” This includes transcripts of testimony concerning co-defendants. See Gosser v. Com., 31 S.W.3d 897 (Ky.2000).

Brady - “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963), see also Sweatt v. Com., 550 S.W.2d 520 (Ky.1977). Brady material also includes impeachment evidence concerning prosecution witnesses. U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), see also Mounce v. Com., 795 S.W.2d 375 (Ky.1990). Where a specific request is made for information prior to trial, as in Brady, so long as there is a “substantial basis” for claiming that materiality exists, “the failure to make any response is seldom, if ever, excusable.” U.S. v. Agurs, 427 U.S. 97, 106, 96 S.Ct. 2392, 2399, 49 L.Ed.2d 342 (1976).

Cases involving Brady violations typically involve discovery, after trial, of exculpatory evidence known to the prosecution but unknown to, and therefore not specifically requested by, the defense. These cases fall into two categories: “perjury” cases and “discovery” cases. In a “perjury” case the discovered evidence shows that a prosecution witness committed perjury on the stand during the trial. Since this is so very prejudicial to a defendant, the standard for setting aside the conviction is only that the false testimony could in any reasonable likelihood have affected the judgment of the jury. See Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1975). Since a “discovery” case involves exculpatory material not available to the defendant at trial but does not also involve perjured testimony, the standard in such cases is higher. In order to warrant reversal, the defendant must show that the undisclosed evidence would have created a reasonable doubt as to guilt which would not otherwise have existed without the evidence. U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). See also Williams v. Com., 569 S.W.2d 139 (Ky.1978).

Nevertheless, “it is fundamental, however, that the materiality of a failure to disclose favorable evidence ‘must be evaluated in the context of the entire record.’ U.S. v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). And the mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome does not establish materiality in the constitutional sense. Id., at 427 U.S. at 112 n. 20, 96 S.Ct. at 2401-02, 49 L.Ed.2d at 354 n. 20.” St. Clair v. Com., 140 S.W.3d 510, 541 (Ky.2004).

(See also “Experts and Discovery” under “Daubert,” supra.)

Practice Tip: Discovery. RCr 7.24 is really two rules. RCr 7.24(1)&(2) describe the initial obligations of the Commonwealth. Under the rule, these obligations are triggered by a written request or motion from the defendant. RCr 7.24(3)(A)&(B) detail the reciprocal discovery obligations of the defendant. Under the rule, these obligations begin only after the Commonwealth has fully complied with its own obligations. In spite of this, though, it is quite common for courts to enter blanket discovery orders which automatically confer reciprocal discovery obligations on both parties. If for some reason you do not want to be initially automatically bound by reciprocal discovery obligations, ask the court to follow the rule as it is written. This may be important in cases where the Commonwealth is routinely slack in meeting its discovery obligations.

EX PARTE HEARINGS

Practice Tip: Ex Parte Hearings. Don’t cut corners! When conducting an ex parte hearing, make a written motion (filed with the clerk), tender a prepared order to the judge, and put the hearing on the record. Without a record, there is no way to preserve the issue if the court refuses your request.

EX POST FACTO

An ex post facto violation ocurrs in the context of a judicial decision when an unforseeable state court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect of which is to deprive him of due process of law in the sense of being given fair warning that his contemplated conduct constitutes a crime. Tharp v. Com., 40 S.W.3d 356 (Ky.2000). See also Purvis v. Com., 14 S.W.3d 21 (Ky.2000). Nevertheless, if the court can construe the law as not adding additional punishment, this protection does not exist. For example, requiring registration and notification under the Sexual Offender Registration Act, for an offender who at the time of his offense was not required to register, does not disadvantage the offender to such a degree that retroactive application of the Act constitutes an improper ex post facto application of law; the designation of a sexual predator is not a sentence or punishment but simply a status resulting from a conviction of a sex crime, the purpose of the Act is remedial rather than punitive, and registration and notification under the Act impose only the slightest inconvenience to the offender but further the overwhelming public policy objective of protecting the public. Hyatt v. Com., 72 S.W.3d 566 (Ky.2002).

INDICTMENTS

History - Under the old Criminal Code of Practice an indictment was a “fact pleading”; there were no provisions for a Bill of Particulars, but the indictment was required to be “direct and certain” with regards to the party, the offense, the county, and the circumstances. The specificity of the indictment was itself supposed to make it possible for the defense to prepare adequately. When the Rules of Criminal Procedure went into effect on January 1, 1963, however, the purpose of indictments changed. Under the Rules, indictments are now “notice pleadings.” Their purpose is simply to provide adequate notice to a defendant of the charges against him. Thomas v. Com., 931 S.W.2d 446 (Ky.1996).

Legal Standard - “Under the Due Process Clause, the sufficiency of an indictment is measured by two criteria: first, that an indictment sufficiently apprise a defendant of the criminal conduct for which he is called to answer; and, second, that the indictment and instructions together provide adequate specificity that he may plead acquittal or conviction as a defense against any future indictment for the same conduct and that he not be punished multiple times in this action for the same offense.” Schrimsher v. Com., 190 S.W.3d 318, 325 (Ky.2006), quoting Russell v. U.S., 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962), and Valentine v. Vonteh, 395 F.3d 626, 634-35 (6th Cir.2000).

For an indictment to be sufficient, “the language of the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.” Schrimsher, 325, quoting Hamling v. U.S., 418 U.S. 87, 117-18, 94 S.Ct. 2887, 2907-08, 41 L.Ed.2d 590 (1974).

Facial Defects – RCr 6.10 contains the requirements for the contents of an indictment. Sometimes indictments omit or incorrectly state some part of this information. Although these defects should certainly be pointed out, they virtually never rise to the level of requiring a dismissal. Indeed, RCr 6.12 says: “An indictment...shall not be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected by reason of a defect or imperfection that does not tend to prejudice the substantial rights of the defendant on the merits.”

An indictment can therefore omit the signature of the foreman of the grand jury, RCr 6.06, omit the names of the witnesses who appeared in front of the grand jury, RCr 6.08, get the caption wrong, RCr 6.10(1), get parts of the description of the offense wrong, RCr 6.10(2), contain the wrong KRS citation for the offense charged, RCr 6.10(3), or omit the date the indictment was returned in open court RCr 6.10(4). Generally speaking, pursuant to RCr 6.12 none of these defects require the dismissal of the indictment. See, e.g., Abramson, Kentucky Practice, Vol. 8, 4th Ed., Sections 12:11 and ff. (West: 2003) pp. 312-318.

Substantive Defects – Nevertheless, it is still possible for indictments to be defective in ways which might require a remedy from the court. For example, if the indictment does not name the time, place, or alleged victim, or if it is scanty with regards to the facts alleged by the Commonwealth, then the court should grant a Bill of Particulars under RCr 6.22. Thomas v. Com., 931 S.W.2d 446, 450 (Ky.1996). Since indictments are no longer fact pleadings but merely abbreviated notice pleadings, when a defendant requests a Bill of Particulars, he should be supplied freely with the details of the charges so he can prepare his defense. Finch v. Com., 429 S.W.2d 146 (Ky.1967).

Indictments might also contain charges which must either be dismissed or amended, or which might require the prosecutor to elect which charge to prosecute. A few examples are given below, without attempting to be exhaustive.

Indictment Only Charges Misdemeanors – A District Court has exclusive jurisdiction over misdemeanor charges and a Circuit Court does not have jurisdiction unless the misdemeanor charges are combined with felony charges in the indictment. If the indictment charges only misdemeanors, the charges have to be remanded to District Court. KRS 24A.110, Keller v. Com., 594 S.W.2d 589 (Ky.1980), see also RCr 5.20, which requires indictments returning only misdemeanors to be docketed in district court.

Charges Barred by Double Jeopardy – For example, a person cannot be charged with both Forgery and Possession of a Forged Instrument, for the same instrument. KRS 516.080. Or, one charge might be a lesser included charge of another, both for the same act. See KRS 505.020 and Com. v. Burge, 947 S.W.2d 805 (Ky.1996). Or the defendant may have already pled to an amended misdemeanor in district court. Com. v. Karnes, 675 S.W.2d 583 (Ky.1983).

Double-Enhancement – Double enhancement is a sub specie of double jeopardy violations. A common example is the case of a defendant charged with both Possession of a Handgun by a Convicted Felon and also with PFO 2nd. Each offense requires proof of at least one prior felony conviction. The principle of double-enhancement says that, in order to sustain convictions on both charges, the prosecution would have to prove that the defendant had two separate prior convictions. To prove both the handgun charge and the PFO charge with a single prior conviction, and in the same proceeding, would be “double-enhancement.” Jackson v. Com., 650 S.W.2d 250 (Ky.1983), Eary v. Com., 659 S.W.2d 198 (Ky.1983), O’Niel v. Com., 114 S.W.3d 860 (Ky.App.2003). If the indictment indicates that the Commonwealth does not have the sufficient number of prior felonies to prosecute both charges, the PFO will have to be dismissed. Remember too that, under the PFO statute, some prior felonies can merge into a single prior conviction, thus reducing the number of prior convictions available to the Commonwealth even more. KRS 532.080(4).

Date-Specific Offenses – A few statutes are very specific about the dates of offenses, and the dates of offenses included in the indictment will have to be scrutinized carefully. For example, the PFO statute requires that the prior felonies which can be used to prove PFO status have to have been served out within five years prior to the current offense. KRS 532.080(2)(c), (3)(c).

Age-Specific Offenses – Almost all of the sex offenses in KRS 510 are age-specific with regard to both the victim and the perpetrator. The indictment might, for example, charge a defendant with Rape 1st when the description of the offense would only support a charge of Rape 2nd.

Misleading the Grand Jury – An indictment will not be dismissed simply because the Grand Jury was not presented with enough evidence or because the Grand Jury did not hear “both sides of the story.” RCr 5.08, 5.10. If a prosecutor knowingly presents false, misleading, or perjured testimony, however, the court may dismiss the indictment. Com. v. Baker, 11 S.W.3d 585 (Ky.App.2000).

Amending Indictments - RCr 6.16 allows indictments to be amended “any time before verdict or finding” but the amendment cannot charge an additional or different offense nor can it prejudice the substantial rights of the defendant. Kentucky courts have read this statute broadly, however, and a prosecutor can generally amend an indictment to conform to the proof without affecting the substantial rights of a defendant, so long as the defendant is not surprised, misled, or prejudiced. See, e.g., Johnson v. Com., 864 S.W.2d 266 (Ky.1993).

On the other hand, in Stirone v. U.S., 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the Supreme Court held that, after an indictment has been returned, a charge cannot be broadened through amendment to include wholly additional factual allegations except by the grand jury itself. The court reasoned that the substantial right violated by allowing the amendment was “the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury.” Id., at 217. So one objection to allowing amendment of the indictment is that it allows the Commonwealth to proceed on a theory or set of facts never reviewed by a Grand Jury. That is why §12 of the Kentucky Constitution and RCr 6.02(1) require felonies to be prosecuted by indictment only, unless the defendant waives the requirement.

In Wolbrecht v. Com., 955 S.W.2d 533 (Ky.1997), the Commonwealth, in both the indictment and in its Bill of Particulars, had alleged that the defendants had actually killed the victim, then amended the indictment to allege that the defendants had been accomplices of some unknown shooter. The Kentucky Supreme court reversed the conviction, citing Stirone. See also Com. v. Ellis, 118 S.W. 973 (Ky.1909), quoted in Wolbrecht, for the proposition that a defendant has the right to rely on the fact that he will only have to rebut evidence of which he was given notice.

Apprendi - In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and U.S. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the United States Supreme Court ruled that, except for prior convictions, any fact necessary to support an enhanced sentence must be either proven beyond a reasonable doubt or admitted by the defendant. A defendant is entitled to a jury determination of any fact which would increase the maximum punishment for an offense.

Presenting Evidence to the Grand Jury – This can be very effective. RCr 5.08 provides that, a defendant may contact the Commonwealth Attorney in writing, giving notice of his request to present evidence to the grand jury. The Commonwealth Attorney then informs the grand jury of the request. However, a defendant has no constitutional right to present evidence to a grand jury. RCr 5.08 is “simply an indulgence of the court.” Stopher v. Com., 57 S.W.3d 787, 794 (Ky.2001).

Neither a defendant nor his attorney should contact any member of the grand jury directly, and it is expressly not a good idea to have the defendant testify. The defendant will be put under oath (RCr 5.04) and examined by the Commonwealth Attorney (RCr 5.14) without his own attorney present, (RCr 5.18). See, e.g., Ault v. Com., 2005 WL 735588 (Ky.App.2005), unpublished, in which the defendant, on advice from his attorney, went into the grand jury unprepared and made an awful showing, resulting in his indictment for murder. (The court held that the defendant probably would have been indicted anyway, but he faced trial having been under oath unable to keep his story straight. He pled guilty and got 13 years on an amended charge.)

Proof at Trial - In cases of indictments charging multiple offenses over a relatively long period of time, such as sexual abuse over a period of years, remember that when multiple offenses are charged in a single indictment, the Commonwealth must introduce evidence sufficient to prove each offense and also to differentiate each count from the others. Miller v. Com., 77 S.W.3d 566 (Ky.2002). See also Valentine v. Vonteh, 395 F.3d 626, 634-35 (6th Cir.2000), in which the court described each charge as a “carbon copy” of the other, and thus held that the indictment had not given the defendant adequate notice.

In each of these cases, the alleged victim described a “typical” act of abuse and then simply estimated how many times it supposedly occurred. In such circumstances, one might also argue that a corollary of the requirement that multiple charges be differentiable is the requirement that, in order to be competent to testify, a witness needs to have a distinct memory of each event as a separate event. See, e.g., Cranmer v. Com., 2003 WL 21990216 (Ky.2003), unpublished, in which it was error to allow the victim in a vehicular assault case, and who had no recollection of what had happened in the accident, to testify nevertheless that it was his habit to turn his headlights on at night and to use his turn signal.
LIMITING INSTRUCTIONS

Appropriateness - Counsel should consider requesting limiting instructions when evidence is only admissible for a particular purpose and no others. KRE 105(a) is mandatory. It says: “...the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly.” So for example, a limiting instruction is appropriate when prior bad acts under KRE 404(b) are admitted for the limited purpose of establishing opportunity, plan, identity, etc., but not in order “to prove the character of a person in order to show action in conformity therewith.” See, e.g., Bell v. Com., 875 S.W.2d 882, 890 (Ky.1994). Likewise, an instruction is appropriate when evidence of a prior conviction under KRE 609 is offered “for the purpose of reflecting upon the credibility of a witness.” In Lanham v. Com., 171 S.W.3d 14 (Ky.2005), the court ruled that a limiting instruction was required when the jury was going to listen to a tape-recorded interrogation in which the interrogating officer commented on the truthfulness of the defendant’s statements.

A court is not required to give a limiting instruction sua sponte. It must only do so “upon request.” KRE 105(a).

Effect on Prosecution - The important thing to remember about limiting instructions is that they also restrict the kind of argument the prosecutor can make in closing. The prosecutor will have to confine his remarks on that evidence to the purpose for which it was introduced. “[L]awyers are obligated to use such evidence only for its proper purpose during the course of a trial. For example, evidence admitted only for credibility but not a substantive purpose must be used in closing argument only in relationship to the credibility of witnesses.” Robert Lawson, The Kentucky Evidence Law Handbook, 4th ed., Lexis-Nexis: 2003, § 1.05[5], p. 28. See, e.g., Zogg v. O’Bryan, 237 S.W.2d 511 (Ky.1951). Without an instruction, however, the evidence is admitted “without limitation.” KRE 105(a).

The misuse of evidence of limited admissibility can constitute reversible error. See Osborne v. Com., 867 S.W.2d 484 (Ky.App.1993). In Osborne, the defendant was charged with vehicular manslaughter and DUI. The prosecutor introduced the defendant’s prior DUI conviction in order to prove that the DUI the defendant was charged with was actually a DUI, 2nd Offense. No limiting instruction was asked for or given. The prosecutor then urged the jury to consider the prior DUI conviction while deliberating on the manslaughter charge. The Court of Appeals ruled that it was reversible error to admit the prior DUI conviction because the defendant was not charged with DUI 2nd and because the judge admitted the evidence without a limiting instruction. The Court of Appeals also said that “...the prosecutor specifically urged the jury to consider the improper information in deliberating on Osborne’s guilt on the manslaughter charge. The prosecutor’s comments were inappropriate, inaccurate, highly inflammatory, and unquestionably tantamount to palpable error affecting Osborne’s substantial rights.” Id., at 489.

MISTRIAL

Before a mistrial is appropriate the record must reflect a “manifest necessity” for such an extraordinary remedy. Skaggs v. Com., 694 S.W.2d 672, 678 (Ky.1985). For a mistrial to be proper, the harmful event must be of such magnitude that a litigant would be denied a fair and impartial trial and that the prejudicial effect could be removed in no other way. Gould v. Charlton Co., Inc., 929 S.W.2d 734 (Ky.1996), Combs v. Com., 198 S.W.3d 574 (Ky.2006).

MOTIONS IN LIMINE

Legal Standard - KRE 103(d) authorizes a request for a pretrial ruling on the admissibility of evidence. The rule says that the court may defer a ruling, but if the issue is resolved by an “order of record,” no further objection is necessary. According to the rule, making the motion and getting a ruling will preserve the issue for appellate review.

So, if that is true, do you have to then object all over again when the evidence comes up during the trial? Maybe you do. The rule notwithstanding, a motion in limine will only preserve an objection for appellate review if it meets the following criteria:

1) the motion pinpoints a specific issue, i.e., it states specifically what the evidence will be and what the objection to
it is,
2) the motion includes a specific request,
3) you get a ruling on the record, and
4) your objection at trial is the same objection as the motion in limine. If the objection at trial would be different
from the one you made in limine, then the trial objection is not preserved unless you make it during trial.

Lanham v. Com., 171 S.W.3d 14 (Ky.2005). See, e.g., Tucker v. Com., 916 S.W.2d 181 (Ky.1996), overruled by Lanham, in which it was held that making a motion in limine to exclude KRE 404(b) evidence did not suffice to preserve all the issues arising from that evidence. The motion in limine did not specifically object to some of the details of the uncharged crime which were presented at the trial, and when there was no contemporaneous objection to those details, the Court held the issue unpreserved.

To clarify, Tucker held that the contemporaneous objection rule required counsel to re-object. Lanham relaxed that requirement by specifying when a motion in limine is sufficient to preserve an issue. The best practice is simply to re-object if there is any doubt. If the objection is the same as the motion in limine, just refer the court back to that motion and the grounds for it.

Practice Tip: When the Court Defers a Decision. If the court defers a ruling on the admissibility of evidence, make sure to move the court to order that the evidence not be mentioned in opening statements.

NOTICE OF DEFENSES

KRS 500.070(2) says simply, “No court can require notice of a defense prior to trial time.” Important exceptions include reciprocal discovery obligations under RCr 7.24, rape shield under KRE 412, and mental health defenses under KRS 504.070.

RCr 7.26, which requires the Commonwealth to provide witness statements at least 48 hours prior to trial, is not reciprocal.

Neither party in a criminal action is required to disclose a witness list in pre-trial discovery. King v. Venters, 596 S.W.2d 721 (Ky.1980), Lowe v. Com., 712 S.W.2d 944 (Ky.1996). “It is our opinion that there is no authority for requiring a defendant to furnish such a list to the Commonwealth, and we are not entirely convinced that it would be free of constitutional difficulty.” King, at 721. See also Com. v. Nichols, 2007 WL 1723371 (Ky.App.2007), unpublished, for a full discussion. Nevertheless, a court may require a defendant to provide a witness list at trial, at the outset of voir dire, for the purpose of inquiring of the jurors if any of them were “close personal friends” or “related by blood or marriage” to any of the named witnesses. Hardy v. Com., 719 S.W.2d 727 (Ky.1986).

It is a misuse of the grand jury for a prosecutor to facilitate his trial preparation by summoning defense witnesses to the grand jury. Bishop v. Caudill, 87 S.W.3d 1 (Ky.2002).

PRE-TRIAL MOTIONS, GENERALLY

Motions Which Must Be Made Before Trial – The Rules of Criminal Procedure distinguish between motions which may be made before trial and those which must be made before trial. According to the commentary which used to accompany the rules, this distinction is based on the current Federal Rule of Criminal Procedure 12(b)(2)&(3). RCr 8.16 is permissive, and was meant to include the kinds of motions which were formerly demurrers under the old Code of Practice in Criminal Cases (Cr.C.), which was abolished on January 1st, 1963 when the current rules took effect. On the other hand RCr 8.18 is mandatory, and was meant to encompass what were formerly motions to set aside or quash the indictment. Therefore, RCr 8.18 requires that any motion which is “based on defects in the institution of the prosecution or in the indictment or information” must be made before trial. (See also RCr 9.34, which requires that, “A motion raising an irregularity in the selection or summons of the jurors or formation of the jury must precede the examination of the jurors.” This rule also applies to the formation of a grand jury. Com. v. Nelson, 841 S.W.2d 628 (Ky.1992).)

Motions Prior to Entering a Plea - RCr 8.20 says: “Time of Making Motion. The motion raising defenses or objections shall be made before the plea is entered, but the court may permit it to be made within a reasonable time thereafter without withdrawal of the plea.” Because of this rule, at arraignment some attorneys explicitly reserve the right to make further motions after entering the plea, as if the rule covered all motions a defendant might make and a defendant has to reserve the right to make the motions or the right is waived. Nevertheless, the practice of reserving all defense motions after arraignment is unnecessary. The rule refers only to motions to quash the indictment.

“The motion raising defenses or objections” in RCr 8.20 is the motion “based on defects in the institution of the prosecution or in the indictment or information” in RCr 8.18. RCr 8.20 is a direct reflection of the old Criminal Code. If one reviews the original commentary to the rules, one finds that RCr 8.20 is based on Cr.C. 157 and 158. Under those sections, a defendant at arraignment would have to either enter a plea or move to quash the indictment. The motion to quash the indictment had to be made before entering a plea. Failing to do so would waive the issue. See, e.g., Sloan v. Com., 277 S.W. 488 (Ky.1925). So “the motion raising defenses or objections” in RCr 8.20 is a motion to quash the indictment, and the rule simply reflects the requirements of the old Criminal Code. Furthermore, the motion is not waived by failure to make it prior to entering a plea. It is only waived if not made prior to trial, RCr 8.18.

Note that RCr 6.06 also requires a certain type of objection be raised before entering a plea. It says, “All indictments shall be signed by the foreperson of the grand jury. All informations shall be signed by an attorney for the Commonwealth. No objection to an indictment or information on the ground that it was not signed as herein required may be made after a plea to the merits has been filed or entered.” (Based on the old Cr.C. 119.) In Stephenson v Com., 982 S.W.2d 200 (Ky.1998), the court imputed a waiver of the defendant’s objection to the fact that the indictment was unsigned, from the defendant’s failure to object to that fact prior to entering a plea.

Bench Trials - The Commonwealth must agree to waiver of a jury trial under RCr 9.26(1). A defendant’s waiver must be in writing, and the written waiver is presumed to establish the voluntariness of the waiver for Boykin purposes, so that the trial court does not have to inquire further. Marshall v. Com., 60 S.W.3d 513 (Ky.2001).

RCR 9.26(1) does not apply to petty offenses (generally those which carry less than 6 months in jail) unless the defendant has been granted a request for a jury trial. If so, he can then only waive the jury with the consent of the Commonwealth. Com. v. Green, 194 S.W.3d 277 (Ky.2006).

Competency – Competency hearings are mandatory once the defendant has raised the issue. It is a denial of the constitutional right to a fair trial for the trial court to refuse to hold a hearing. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

In Bishop v. Caudill, 118 S.W.3d 159 (Ky.2003), the Commonwealth requested an order requiring the defendant to submit to a competency evaluation by its own expert. The Kentucky Supreme Court ruled that the defendant was entitled to a writ of prohibition because the Commonwealth is not entitled to its own expert on the issue of competency.

A court is not required to raise the issue of competency sua sponte. See, e.g., Gibbs v. Com., 208 S.W.3d 848 (Ky.2006).

Challenges to Constitutionality – CR 24.03 states, “When the constitutionality of an act of the General Assembly affecting the public interest is drawn into question in any action, the movant shall serve a copy of the pleading, motion or other paper first raising the challenge upon the Attorney-General.” See also KRS 418.075. Failure to follow this requirement may preclude appellate review of the constitutionality of the statute itself, but should not preclude review of whether the statute was unconstitutionally applied to a defendant. See Crowley v. Lilly, 2003 WL 21040256 (Ky.App.2003), unpublished, citing Sherfey v. Sherfey, 74 S.W.3d 777 (Ky.App.2002).

Jurisdiction – Pursuant to RCr 8.18, the two motions which can be made anytime, even after a trial, are motions to dismiss based on lack of jurisdiction and on failure of the indictment to charge an offense.

Recusal – Judge. “KRS 26A.015(2) requires recusal when a judge has ‘personal bias or prejudice concerning a party’ or ‘has knowledge of any other circumstances in which his impartiality might reasonably be questioned.’ KRS 26A.015(2)(a) and (e), see SCR 4.300, Canon 3C(1). The burden of proof required for recusal is an onerous one. There must be a showing of facts ‘of a character calculated seriously to impair the judge’s impartiality and sway his judgment.’ Foster v. Com., Ky., 348 S.W.2d 759, 760 (1961), cert. denied, 368 U.S. 993, 82 S.Ct. 613, 7 L.Ed.2d 530 (1962), see also Johnson v. Ducobu, Ky., 258 S.W.2d 509 (1953). The mere belief that the judge will not afford a fair and impartial trial is not sufficient grounds for recusal. Webb v. Com., Ky., 904 S.W.2d 226 (1995).” Stopher v. Com., 57 S.W.3d 787, 794-95 (Ky.2001).

A judge should disqualify himself in any proceeding where he has participated in previous proceedings concerning the same defendant to the extent that his impartiality may reasonably be questioned. Small v. Com. 617 S.W.2d 61 (Ky.App.1981).

When a trial judge overruled a motion challenging guilty pleas from 1973 and 1977, he erred in failing to disqualify himself because he had been the county attorney at the time of the pleas. Carter v. Com., 641 S.W.2d 758 (Ky.App.1982).

When the judge maintained, contrary to the record, that he reviewed the defendant’s constitutional rights with the defendant at his guilty plea to a prior marijuana offense while serving as district judge, this is “personal knowledge” of the type abjured by KRS 26A.015(2)(a) and failure to either suppress the prior conviction or recuse was an abuse of discretion. Woods v. Com., 793 S.W.2d 809 (Ky.1990).

Prosecutor. See KRS 15.733. Prosecuting attorneys are subject to public reprimand when they enter into contingency fee agreements to pursue civil actions against individuals they are simultaneously prosecuting on criminal charges. K.B.A. v. Marcum, 830 S.W.2d 389 (Ky.1992).

Disqualification on retrial following remand was proper when the defendant’s attorney subsequently joined the Commonwealth Attorney’s office. Brown v. Com., 892 S.W.2d 289 (Ky.1995).

Separate Trials – RCr 9.16 says that if a defendant or the Commonwealth will be prejudiced by the joinder of offenses or co-defendants in a single trial, the court “shall” order separate trials. However, this rule needs to be read together with RCr 6.18 and 6.20 – the rules on joining offenses and co-defendants. Since merely standing trial is itself a kind of prejudice, mere prejudice alone will not require separate trials. The joinder must be so prejudicial as to be unfair, or unnecessarily or unreasonably hurtful. An important factor for a court to consider in ruling upon a motion to sever is whether evidence in one offense could properly be admitted in the trial of the other. Com. v. English, 993 S.W.2d 941, 944 (Ky.1999), Ratliff v. Com., 194 S.W.3d 258 (Ky.2006). See also Dickerson v. Com., 174 S.W.3d 451 (Ky.2005) in which the court ruled that it was error to consolidate into one indictment the separate charges of violating the Sex Offender Registration Act and Possession of a Handgun by a Convicted Felon, when the two charges were unrelated.

“In order to justify the granting of a severance, it must appear that the defendants have antagonistic defenses, or that the evidence as to one defendant tends directly to incriminate the other.” Tinsley v. Com., 495 S.W.2d 776, 780 (Ky.1973). See also Rachel v. Com., 523 S.W.2d 395 (Ky.1975). “The movant must show that the antagonism between the co-defendants will mislead or confuse the jury.” U.S. v. Horton, 847 F.2d 313, 317 (6th Cir.1988). The movant satisfies this burden if he or she shows that the jury was unable “to separate and treat distinctively evidence that is relevant to each particular defendant at trial.” U.S. v. Gallo, 763 F.2d 1504, 1525 (6th Cir.1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1200, 89 L.Ed.2d 314 (1986).

Perhaps the most common problems requiring severance are those which have to do with issues surrounding the U.S. Supreme Court holdings in Bruton v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Under both opinions, statements may be admissible against one co-defendant but not against another. If the Commonwealth really wants to use the statement, it might require severance. See Jackson v. Com., 187 S.W.3d 300 (Ky.2006), in which it was reversible error to refuse a motion to sever when the court ruled to admit evidence to impeach the defendant, in violation of Crawford v. Washington.

Practice Tip: Separate Trials. If your motion for separate trial is denied, remember to keep pointing out to the court, for the record, why the charges or co-defendants should have been severed, even into the penalty phase if necessary. See Cosby v. Com., 776 S.W.2d 367 (Ky.1989), overruled on other grounds, and especially Foster v. Com., 827 S.W.2d 670 (Ky.1991), in which it was reversible error to refuse to sever the penalty phase of the trial.

Speedy Trials - The right to a speedy trial is guaranteed by the Sixth Amendment and by §14 of the Kentucky Constitution. Each case must be reviewed on an individual basis, and the factors a court must consider are: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) the prejudice to the defendant. Only if the length of delay is presumptively prejudicial must the court then go on to consider the remaining factors. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See also Bratcher v. Com., 151 S.W.3d 332 (Ky.2004), for a full discussion.

There are also two important statutory rights to a speedy trial. KRS 500.110 governs situations in which a defendant in jail in one county is also being held on a detainer from another county. KRS 440.450 is the Interstate Agreement on Detainers, governing similar situations between different states. In both cases, the defendant must be brought to trial within 180 days of giving the proper notice of his request to the proper prosecuting authority.

Practice Tip: Speedy Trials. Once a speedy trial issue is raised, make sure to (1) make all the relevant dates clear for the record, (2) do not consent to a continuance unless it is in your client’s best interest (agreeing to a continuance stops the clock), and (3) move to dismiss the charges.

Suppression Hearing – A motion for a suppression hearing can be made virtually any time before the evidence is actually introduced at trial, even if the trial has already begun. RCr 9.78. The hearing should be held outside the hearing of the jury. KRE 104(c), see also Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and RCr 9.78. The preferred practice is for the court to make a ruling at the suppression hearing rather than postponing the ruling for trial. See Hayes v. Com., 175 S.W.3d 574, 595-96 (Ky.2005), in which it was prejudicial error to refuse to rule on the defendant’s suppression motion.

While testifying in a suppression hearing, the defendant cannot be cross-examined concerning any other issues in the case. KRE 104(d), Shull v, Com., 475 S.W.2d 469 (Ky.1971).

A defendant’s testimony to establish standing at a suppression hearing cannot be used against the defendant at trial. A defendant is not required to make a “Hobson’s choice” between establishing standing under the 4th Amendment and then being impeached with it, or maintaining his 5th Amendment right to remain silent and therefore waiving the suppression issue. Simmons v. U.S., 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), Hayes, supra, at 595-96. (If anyone may wonder, a “Hobson’s choice” is the choice between what is offered or nothing at all. It is named after Thomas Hobson (1544-1631), the keeper of a livery stable in Cambridge, England, who gave his customers one choice: buy the horse nearest to the stable door, or nothing.)

Practice Tip: Suppression Hearings. RCr 9.78 requires an evidentiary hearing. Make sure the facts surrounding the search go into the record, even if the defendant and the Commonwealth both stipulate to the same facts. Hearings which do not reflect the factual basis of the suppression issue, as it was presented to the trial court, leave appellate courts with nothing to rule on. You must object to not holding an evidentiary hearing. Com. v. Jones, 217 S.W.3d 190 (Ky.2006), Lewis v. Com., 42 S.W.3d (Ky.2001).

Unpublished Opinions – Effective January 1, 2007, CR 76.28(4) was amended to say: “...unpublished Kentucky appellate decisions, rendered after January 1, 2003, may be cited for consideration by the court if there is no published opinion that would adequately address the issue before the court. Opinions cited for consideration by the court shall be set out as an unpublished decision in the filed document and a copy of the entire decision shall be tendered along with the document to the court and all parties to the action.”

Venue - Improper venue can be waived by the defendant, so make sure that a timely motion or objection is made. KRS 452.650, Chancellor v. Com., 438 S.W.2d 783 (Ky.1969). A motion for change of venue must comply with KRS 452.210 and KRS 452.220. Make sure that the petition is verified and accompanied by at least two affidavits. Also, make sure that the request for a change of venue is made in a timely manner, with notice to the Commonwealth. See Fugate v. Com., 993 S.W.2d 931 (Ky.1999), Whitler v. Com., 810 S.W.2d 505 (Ky.1991) and Taylor v. Com., 821 S.W.2d 72 (Ky.1991). According to Thompson v. Com., 862 S.W.2d 871 (Ky.1993), a motion filed two days before trial is not timely. The motion must be renewed after voir dire. Hodge v. Com., 17 S.W.3d 824 (Ky.2000).
RIGHT TO TRIAL

There is no constitutional right to a jury trial in the case of “petty” offenses (generally, those which carry 6 months or less in jail). Nevertheless, KRS 29A.270(1) gives a defendant the statutory right to a jury trial in “all criminal prosecutions, including prosecutions for violations of traffic laws, in Circuit and District Courts.” The statute should then be interpreted as placing the burden on the accused to request a jury trial in the case of petty offenses. Com. v. Green, 194 S.W.3d 277 (Ky.2006).
STIPULATIONS

Stipulations should be in writing, but it is not necessarily fatal if they are not. Clark v. Com., 418 S.W.2d 241, 242 Ky.1967). The judge sometimes publishes the stipulation to the jury.

Stipulating to issues the opponent is not prepared to prove – Be aware that stipulating to part of the Commonwealth’s case will have the effect of waiving that issue on appeal. See, e.g., Harris v. Com., 2007 WL 3226193 (Ky.2007), unpublished, in which the defendant who stipulated to chain of custody could not later raise the issue on appeal.

Stipulating to issues the opponent is prepared to prove – Sometimes attorneys attempt to stipulate to an issue in order to keep an opponent’s evidence out. The theory is that once a party stipulates to an issue, the production of further evidence on the issue is just cumulative, and therefore more prejudicial than probative under KRE 403. See Old Chief v. U.S., 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), in which the U.S. Supreme Court held that it was reversible error for the trial court to refuse the defendant’s stipulation to the prior conviction element of the charged offense and to then allow the prosecution to show not only the fact of the prior offense, but the specific nature of it as well.

Remember, however, that the Commonwealth does not have to accept a stipulation: “the prosecution is permitted to prove its case by competent evidence of its own choosing, and the defendant may not stipulate away the parts of the case that he does not want the jury to see.” Johnson v. Com., 105 S.W.3d 430 (Ky. 2003), quoting Barnett v. Com., 979 S.W.2d 98, 103 (Ky.1998). Moreover, if the Commonwealth does not accept the offer to stipulate, the mere fact that the defendant offered to stipulate will not preserve an error under KRE 403. Johnson, at 439. (As David Niehaus points out in DPA’s Evidence Manual, 5th ed., The Advocate, vol. 27, no. 4, Summer 2005, p. 22: “Old Chief is not a constitutional opinion and therefore is not binding on Kentucky Courts. The Kentucky Supreme Court has little patience for this argument.” (Citing Johnson, supra.) He concludes: “It is unlikely to prevail on appeal.... The place to make and win this argument is at the trial level.”)

SUBPOENAS

A witness in a criminal trial can only comply with a subpoena by appearing in court, and cannot be excused by an attorney. Once a witness is subpoenaed for trial, by either side, he has “a continuing obligation...to be available as a witness until the case was concluded or until he was dismissed by the court.” Anderson v. Com., 63 S.W.3d 135, 142 (Ky.2002), quoting Otis v. Meade, 483 S.W.2d 161, 162 (Ky.1972). In Anderson, the Commonwealth Attorney knew that the defendant was relying on the testimony of a subpoenaed prosecution witness and excused the witness without informing either the defendant or the court.

Refusal to comply with a subpoena is punishable as contempt of court, KRS 421.110, a warrant of arrest may be issued, KRS 421.130, and a special bailiff may even be authorized to arrest persons who are in another county, KRS 421.135. See also RCr 7.06.

It is an abuse of subpoena power to compel a witness in a criminal case to attend pretrial interviews in the attorney’s office. Subpoenas can only be used to require a witness’s attendance at a formal judicial proceeding. “The government may not use trial subpoenas to compel prospective trial witnesses to attend pretrial interviews with government attorneys.” Hillard v. Com., 158 S.W.3d 758, 764 (Ky.2005), quoting U.S. v. LaFuente, 991 F.2d 1406, 1411 (8th Cir.1993). See also Ethics Opinion E-423 (OPINION) adopted by the KBA Board of Governors in January 2004 and published in the March 2004 issue of the Kentucky Bench and Bar, amended by Stengel, below.

It is an abuse of subpoena duces tecum power to compel the production of documentary or other tangible objects to the office of an attorney when other parties receive no notice and the issuance of the subpoena was not in connection with a deposition or court proceeding, requiring sanctioning with a public reprimand. Megibow v. K.B.A., 173 S.W.3d 618 (Ky.2005). CR 45.01 states: “Subpoenas may not be used for any purpose except to command the attendance of the witness and production of documentary or other tangible evidence at a deposition, hearing or trial.”
See also Ethics Opinion E-423.

RCr 5.06, concerns the use of subpoenas in grand jury proceedings, and was amended by order in Stengel v. K.B.A., 162 S.W.3d 914 (Ky.2005). See that opinion for the state of the law in that area. The amendment to RCr 5.06 arguably gives defense counsel the power to subpoena witnesses to the grand jury.

PRESERVING A CLEAR RECORD ON APPEAL

You will have a lot to think about in any trial, but try to remember the following: (1) If it cannot be seen or heard on the record, or reconstructed by the written record, it did not happen. All gaps in the record will be presumed to support the trial court. (2) Watch for dead spots in audio recording and blind spots in video recording. Know where your microphones are and where the cameras are aimed. Do not create a dead spot at counsel table by blocking microphones with books and shuffling papers. (3) Bench conferences: speak up! In courtrooms with modern sound systems, the white noise you hear when the amplifiers go off will stop the jury from overhearing what you have to say. If the judge is too far away from the microphone or is whispering, restate the judge’s ruling into the microphone.

II. THE JURY

PROCEDURE FOR SELECTING A JURY POOL

The master list of prospective jurors includes all persons in the county who are over 18 and have a license, all those persons on the county’s voter registration lists, and all those persons whose tax returns show them to be residents of the county. AOC must create a master list “at least annually.” Administrative Procedure of the Court of Justice, APCJ II, Sec. 2, KRS 29A.040(2). The AOC then uses a computer to generate a randomized list of potential jurors from the master list, and the chief circuit judge then takes as many names as needed off the list in sequence. APCJ II, Sec. 3 and 5. The people are then summonsed and become the jury pool for that county.

Failure to Follow the Procedure – This can require dismissal of the indictment when it involves a grand jury, Gill v. Com., 374 S.W.2d 848 (Ky.1964), Fugate v. Com., 233 S.W.2d 1019 (Ky.1950), or the granting of a new trial when it involves a petit jury, Williams v. Com., 71 S.W.2d 626 (Ky.1934).

RCr 9.34 requires that, “A motion raising an irregularity in the selection or summons of the jurors or formation of the jury must precede the examination of the jurors.” This rule applies to grand juries as well as petit juries. Com. v. Nelson, 841 S.W.2d 628 (Ky.1992). The exception is when the defendant could not have discovered the irregularities by due diligence prior to the time of trial. Allen v. Com., 901 S.W.2d 881 (Ky.App.1995), Bartley v. Loyall, 648 S.W.2d 873 (Ky.App.1982).

Note: In both Com. v. Nelson, 841 S.W.2d 628 (Ky.1992) and Allen v. Com., 901 S.W.2d 881 (Ky.App.1995), the courts ruled that a judge cannot delegate the responsibility of reviewing juror qualification forms and disqualifying those jurors who fall under the criteria of KRS 29A.080(2). At the time of those decisions, both APCJ II, Sec. 8 and KRS 29A.080 required the determination to be made by a judge. However, KRS 29A.080(1) was amended in 2002 and now allows those determinations to be delegated to court administrators and clerks. (APCJ II, Sec. 8 still requires judges to do the job.)

Objecting to the Procedure Itself - A defendant has a Sixth Amendment right to a jury which represents a fair cross-section of his community. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). An objection to the composition of a jury pool based on the due process right to a fair cross-section must show that: (1) the group allegedly excluded is a distinctive group in the community, (2) the representation of that group in the venires from which the jury is selected is not fair and reasonable in relation to the numbers of other persons in the community, and (3) the under-representation is due to the systematic exclusion of the group in the jury selection process. Ford v. Com., 665 S.W.2d 304 (Ky.1984), cert denied, 469 U.S. 984, 105 S.Ct. 392, 83 L.Ed.2d 325; Smith v. Com., 734 S.W.2d 437 (Ky. 1987).

A defendant also has an equal protection right to a jury in which there is no substantial under-representation of a racial or other identifiable group. This applies to petit juries as well as grand juries. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

Nevertheless, a master list is not unconstitutional just because it may fail to include some potentially eligible voters. A fair cross-section complaint cannot be established by merely comparing the composition of the jury to that of the community, because the composition of the community also includes ineligible voters. Ford, supra, at 308.

Improperly Excusing Jurors - Note, however, that even if the master list is unobjectionable, the court may be so liberal in granting excuses or otherwise so lax in following up on jurors who simply do not respond to being summonsed, that a drastic reduction in the available jury pool results nevertheless. For a thorough review of these issues, see Tim Arnold and Gail Robinson, “Jury Pool Issues,” The Advocate, vol. 26, no. 3, May 2004, pp. 10-15. In the course of representing a murder defendant, the authors discovered that out of 500 people summonsed for service in the defendant’s circuit, only 91 of them were left to serve as potential jurors on circuit, district and grand juries after one accounted for all those who never responded to the summons (178), were disqualified (48) or simply excused (183). See, e.g., Sanborn v. Com., 754 S.W.2d 534, 548 (Ky.1988), “The trial court erred in the jury selection procedures, in that the judge excused a number of prospective jurors without recording a reason for the excuses on the jury qualification form.,” and Ward v. Com., 695 S.W.2d 404, 406-7 (Ky.1985), “It is undisputed that the trial judge had not complied with the statute [KRS 29A.100] prior to the motion to be furnished with the list.”

From the Arnold and Robinson article, p 13, including the checklist below:

“KRS 29A.080(1) and 29A.100(2), as amended in 2002, permit the chief judge to delegate decisions concerning disqualification, excuse from service for 10 days or less and postponement of service for less than a year to another judge, court administrator, or clerk. However, decisions involving excuses for “undue hardship, extreme inconvenience or public necessity” for more than 10 days must still be made by the judge. KRS 29A.100(3). If the local authorities are not following the law concerning jury selection a motion to quash the indictment and/or a motion to dismiss the petit jury panel should be made. Such a motion must be made prior to examination of the jurors. See RCr 9.34

“It is important to realize that merely making an oral objection prior to voir dire is not sufficient to preserve the error. In Grundy v. Commonwealth, Ky., 25 S.W.3d 76 (2000), the court considered a situation...where a surprisingly low number of jurors appeared for trial. Trial counsel asked to postpone the proceedings until the no-show jurors appeared, and the court denied the motion. On appeal, Grundy alleged that the court violated Nelson by improperly excusing an excessive number of jurors. The Supreme Court held that the claim was unpreserved, because trial counsel had not made a sufficient record to permit the appellate court to rule on whether the excuses were or were not proper.

“The accused has a right to make a record sufficient to permit appellate review of alleged errors. See Powell v. Commonwealth, Ky., 554 S.W.2d 386, 390 (1977). Consequently...counsel should object to any juror being absent who was not excused pursuant to the procedures set forth in KRS Chapter 29A and APCJ, Part II. Counsel should then ask the court to allow him or her to review the excuses for any “no show” jurors. If the court permits that, counsel should put those excuses in the record for appellate review. If, on the other hand, the judge wishes to proceed to trial without allowing counsel to review the excuses, counsel should make an oral motion on the record asking the court to put the excuses in the record as an avowal.”

CHECKLIST FOR INVESTIGATING A JURY PANEL

1) When did the chief circuit judge last ask AOC to select jurors for the current term?
2) Did he ask for a sufficient number of names from AOC?
3) Is the list being used to summons jurors for this term fresh or stale?
4) Is the chief judge asking the clerk to summons a sufficient number of jurors?
5) If the letters including the jury summons and qualification forms don’t reach the jurors, is the chief circuit judge having the sheriff attempt personal service?
6) Is the chief judge or someone he’s properly designated reviewing forms and deciding if jurors are disqualified?
7) Is the reason for disqualification being entered on the form?
8) Is the judge following the strict standard on permanent medical exemptions?
9) As far as excuses, is the chief circuit judge acting or designating someone listed in the statute to act only as permitted (excused up to 10 days, postponement up to 12 months)?
10) Is the judge following the strict standard for excuses (undue hardship, extreme inconvenience, public necessity)?
11) When does the judge grant excuses and does counsel have any input?
12) If jurors have appeared for orientation but don’t appear for trial, does the judge require them to explain themselves?
13) Have you attended the orientation and listened to what the judge tells the jurors?

OTHER OBJECTIONS TO THE JURY PANEL

Other problems might arise once the jurors have been called to sit on the jury and voir dire has begun. A few cases have addressed some of these situations. Generally speaking, it is rare that any occurrence during voir dire will require dismissal of the entire jury panel.

Remarks Made During Voir Dire - In Tabor v. Com., 948 S.W.2d 569 (Ky.App.1997), a prospective juror said during voir dire that she believed she recognized the defendant and then asked out loud if he had been in the “West Kentucky Correctional Center.” The trial court then excused the juror after a conference with her outside the hearing of the rest of the jurors, leaving the unmistakable impression that the juror had been right about the defendant. The Court of Appeals ruled that this response tainted the entire venire. What was crucial in this case was the fact that, although the defendant did have a prior felony conviction, he could not have been impeached with it during trial because the conviction was still on appeal. Thus, the juror gave the other jurors access to information concerning the defendant which would not have come into evidence during trial.

The Kentucky Supreme Court declined to grant relief in a similar situation in Hall v. Com., 2003 WL 21254856 (Ky.2003), unpublished. In that case, a prospective juror said during voir dire that he knew the defendant and then added, “I used to be deputy jailer in Whitesburg.” The trial court struck the juror for cause but did not grant the defendant’s motion for a mistrial. The Supreme Court ruled that a mistrial was not necessary because there were any number of reasons why a deputy jailer might have known the defendant other than because he had been in jail. For instance, said the court, the other prospective jurors could have assumed he had worked there, or had delivered supplies there, or had been in law enforcement.

The Court of Appeals also declined to follow Tabor in a case very similar to Hall. In Bryant v. Com., 2003 WL 22110576 (Ky.App.2003), unpublished, a prospective juror also said during voir dire that he knew the defendant from jail. In that case, unlike in Tabor, the defendant took the stand and was impeached with his prior felonies. The court ruled that the error was therefore harmless and a mistrial was not necessary.

Juror a Victim of Similar Crime - In Jett v. Com., 862 S.W.2d 908, 910-11 (Ky.App.1993), the defendant on trial for trafficking moved to set aside the jury panel when one prospective juror stated, in the presence of the entire panel, that a drug trafficker had killed his daughter. Instead, the trial court struck the prospective juror. The Court held it was not error to refuse to strike the entire panel because the defendant had proven no prejudice. A prejudicial remark by a juror does not necessarily require striking the entire panel.

Where the defendant was on trial for robbery, the fact that two prospective jurors had been robbery victims was not sufficient to render prospective jurors unqualified. Stark v. Com., 828 S.W.2d 603, 608 (Ky.1991), overruled on other grounds. Also, where the defendant was on trial for assault and burglary and knew the victim, it was not error for the trial court to fail to strike for cause a juror who had been raped at her home three months before by a perpetrator who she did not know and who had not yet been caught. Butts v. Com., 953 S.W.2d 943, 945 (Ky.1997).

Juror Also a Witness in the Case - In Hellard v. Com., 829 S.W.2d 427 (Ky.App.1992), overruled on other grounds, the defendant was charged with theft by deception and forgery based on a forged rental agreement with a video store. The owner of the video store was a member of the jury pool. The defendant moved for a continuance of her trial until a new jury pool was called. The Kentucky Court of Appeals held that, even though the issue had not been preserved, it was palpable error for the trial court to deny the motion for continuance because the “possibility of a jury according the testimony of a witness greater weight than it otherwise would have received is just too great when the witness is a member of the same jury pool.” Furthermore, the court did “not feel that Hellard was required to show bias or prejudice under these circumstances.” Id. at 429. Compare, Colwell v, Com., 37 S.W.3d 721 (Ky.2001), in which the complaining witness was also a member of the jury pool but no reversible error ocurred because the witness was excused before the day of trial and therefore did not mingle with other jurors prior to trial.

In Jones v. Com., 737 S.W.2d 466 (Ky.App.1987), a member of the juror pool was also a witness in the defendant’s trial. The juror was removed from the jury pool before trial began and the defendant was allowed to voir dire on the issue of the weight other jurors might place on the witness’s testimony. It was not error to deny a continuance when all the remaining jurors answered they would not be unduly influenced by the testimony of the former juror.

Juror Convicted a Co-Defendant – In Pelfrey v. Com., 842 S.W.2d 524 (Ky.1993), the defendant moved for a continuance until a new jury pool could be empanelled because the jury that had convicted the defendant’s companion one month earlier had been selected from this same jury pool. The trial court denied the continuance motion.

On appeal, the Court held the trial court had not abused its discretion in denying the continuance motion because “there were adequate safeguards in place to assure an unbiased jury” (i.e., for-cause and peremptory challenges). Id., 525 Furthermore, the defendant had conducted a thorough voir dire examination and had not challenged any prospective jurors for cause, and the trial court had admonished the jurors to consider only what they heard from the witness stand.

The Kentucky Supreme Court further held that because the defendant had not challenged any of the prospective jurors for cause “we can only assume that he was satisfied with the jury.” And that, “a continuance motion for a new panel is not the equivalent of individually challenging jurors for cause. Once trial counsel’s [continuance] motion was denied, his method for reviewing the bias issue was to specifically challenge jurors. Without doing so, counsel clearly waived his jury challenge.” Id.

See also Hicks v. Com., 805 S.W.2d 144 (Ky.App.1990), in which the defendant failed to show that he could not receive a fair trial from a jury drawn from the same pool of jurors who had previously convicted an alleged accomplice. And see also U.S. v. Dempsey, 733 F.2d 392 (6th Cir.1984), in which members of the panel called to try the defendant’s case had been members of the same panel from which jurors were selected for the prior trial of the co-defendant, and three had actually served on the jury which had tried and convicted the co-defendant. The U.S. Court of Appeals ruled there was no error when the trial court did not remove the entire panel but did remove those jurors who had served on the co-defendant’s panel.

Juror Had Participated in Voir Dire in Previous Trials Against Same Defendant – In Merriweather v. Com., 99 S.W.3d 448 (Ky.2003), the court ruled that it was not reversible error to refuse to strike for cause six jurors who had participated in the voir dire of a previous unrelated assault case against the same defendant when the trial court determined that the jurors had only vague recollections of the nature of the former charges and that the defendant was able to use his peremptories so as to excuse all the jurors in question.

On the other hand, see Miracle v. Com., 646 S.W.2d 720 (Ky.1983), in which it was held to be reversible error for the trial court to try the defendant before jurors who had previously been present when the defendant entered a guilty plea which had subsequently been withdrawn. See also Dickerson v. Com., 174 S.W.3d 451,462 (Ky.2005), in which the court ruled that “the jurors who participated in the voir dire at Appellant’s sodomy trial, and thereby learned he used a handgun to forcibly sodomize a child under twelve years of age, were impliedly biased and should have been excused from serving on the subsequent handgun trial,” when the two charges were related, the defendant exhausted all his peremptories, and three of the biased jurors actually served on the handgun trial.

Jurors Served in a Previous Trial of the Same Defendant – Members of the jury panel who served as jurors in previous trials of the defendant must be disqualified and excused. Gossett v. Com., 426 S.W.2d 485 (Ky.1968). Members of the jury panel who had been empanelled to try the defendant on another charge the previous day, and others who had been in the courtroom during that trial, should have been struck for cause. Brumfield v. Com., 374 S.W.2d 499 (Ky.1964).
CALLING JURORS FROM THE POOL

RCr 9.30 describes the process used for the selection of the jury at trial. The specific procedure for calling names in a random way can be found at APCJ II, Sec. 10. Pursuant to RCr 9.30(2), “The jury selection process shall be conducted in accordance with Part Two (2) of the Administrative Procedures of the Court of Justice.” The procedure used to be in KRS 29A.060(2), but the statute was amended in 2002. Failure to substantially follow the proper procedure requires automatic reversal, and no prejudice need be shown. Robertson v. Com., 597 S.W.2d 864 (Ky.1980). See also Bartley v. Loyall, 648 S.W.2d 873, 874-75 (Ky.App.1982), which held it was reversible error for the clerk to try to equalize the workload by calling the numbers of jurors who had participated in fewer cases before calling the numbers of jurors who had participated in more cases. Remember, too, that RCr 9.34 requires an objection to be made before voir dire.
NUMBER OF JURORS

KRS 29A.280(2) provides for 6 jurors in District Court and 12 jurors in Circuit Court. However, a defendant may agree to have fewer than 12 jurors in Circuit Court, down to as few as 6.

The clerk will initially call a number of jurors equal to the number of jurors who will sit on the jury plus the total number of combined strikes to be exercised by both sides. RCr 9.36(2). For example, for a trial in which there will be a single defendant and a jury with 2 alternates, the clerk would begin by calling 32 prospective jurors: 14 jurors plus 18 total peremptories for both sides. (See “Peremptory Strikes,” below.) As jurors are struck for cause during voir dire, the clerk calls new prospective jurors to replace them, RCr 9.30(1)(a), and the process continues until there are no more motions to strike for cause or until the judge ends the voir dire.

III. VOIR DIRE

Right to Conduct Voir Dire - RCr 9.38 allows for a couple of different scenarios: (1) the court allows the attorneys to conduct the voir dire, (2) the court conducts the voir dire but must then allow the attorneys to supplement the voir dire with either direct questions or questions submitted to the court in writing. If the death penalty is sought, there must be individual voir dire on capital punishment, race, or pretrial publicity and, upon request, the court must allow the attorneys to conduct it.

Although there is no statutory right to conduct voir dire in Kentucky, “part of the guarantee of a defendant’s Sixth Amendment right to an impartial jury is an adequate voir dire to identify unqualified jurors. A voir dire examination must be conducted in a manner that allows the parties to effectively and intelligently exercise their right to peremptory challenges and challenges for cause.” Hayes v. Com., 175 S.W.3d 574, 584 (Ky.2005), quoting Morgan v. Illinois, 504 U.S. 719, 729-30, 112 S.Ct. 2222, 2230, 119 L.Ed.2d 492 (1992).

The Purpose of Voir Dire – The purpose of voir dire is not to get jurors either to indicate or to commit to which verdict they might render in the case once the case is submitted to the jury. The purpose of voir dire, rather, is simply to obtain a fair and impartial jury free of any interest, bias or prejudice which might prevent their finding a just and true verdict. Questions put to jurors should be as varied and elaborated as circumstances require, but questions which are clearly designed to have jurors indicate or commit to how they will vote are simply not proper. Ward v. Com., 695 S.W.2d 404 (Ky.1985). See, e.g., Bowen v. Com., 2005 WL 2318967 (Ky.2005), unpublished, in which the defendant attempted to play to the jurors his taped statement to police during voir dire, in an attempt to determine if they would vote to convict based upon the statement.

Voir Dire on Sentencing Ranges - It is reversible error to refuse to allow voir dire on sentencing ranges. Varble v. Com., 125 S.W.3d 246 (Ky.2004). However, voir dire on sentencing ranges need not include informing the jury of the sentencing ranges for either enhanced or lesser included offenses, Com. v. Philpott, 75 S.W.3d 209 (Ky.2002), nor should it include the sentencing ranges for PFO enhancements, Lawson v. Com., 53 S.W.3d 534 (Ky.2001).

Voir Dire on Defendant Not Testifying – Refusal to allow defense counsel to voir dire prospective jurors regarding whether they would hold against defendants the fact that they exercised their Fifth Amendment right not to testify was an abuse of discretion. Hayes v. Com., 175 S.W.3d 574 (Ky.2005).

Voir Dire on Reasonable Doubt – Reasonable doubt can no more be defined in voir dire than in opening statements or closing arguments. Marsch v. Com., 743 S.W.2d 830 (Ky.1988), Com. v. Callahan, 675 S.W.2d 391 (Ky.1984). Nevertheless, for the Commonwealth to point out that “beyond a reasonable doubt” is different from “beyond a shadow of a doubt” is not an attempt to define reasonable doubt. It is, rather, simply to point out the obvious. Howell v. Com., 163 S.W.3d 442 (Ky.2005). On the other hand, “It is proper for a defendant to inform jurors in voir dire that the Commonwealth’s burden of proof is ‘beyond a reasonable doubt’ and to inquire whether they will hold the Commonwealth to that burden.” Hayes v. Com., 175 S.W.3d 574, 587 (Ky.2005).

However, the use of an analogy is an attempt to define reasonable doubt, and it violates the 14th Amendment safeguard “against the dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” See, e.g., Rice v. Com., 2006 WL 436123 (Ky.2006), unpublished, in which the prosecutor used the example, during voir dire, of deciding to marry someone. See also Marsch, supra, in which the prosecutor, during voir dire, used the example of himself as a hypothetical witness to an auto accident. “In all those cases [where this court found an impermissible attempt to define ‘reasonable doubt’], some attempt was made to use other words to convey to the jury the meaning of ‘beyond a reasonable doubt’” Howell, supra, at 447, quoting Simpson v. Com., 759 S.W.2d 224, 226 (Ky.1988).

Referring to Defense Attorney as Public Defender - It is entirely improper to make any reference to whether the defendant’s attorney is being paid, or to how much or how little. Goff v. Com., 44 S.W.2d 306 (Ky.1931).

TIMING OF STRIKES FOR CAUSE

Pursuant to RCr 9.36(1), “Challenges for cause shall be made first by the Commonwealth and then by the defense,” and (3) “All challenges must be made before the jury is sworn. No prospective juror may be challenged after being accepted unless the court for good cause permits it.”

STRIKES FOR CAUSE, GENERALLY

Strikes for cause are unlimited. KRS 29A.290(2)(a). Each defendant has the right to a fair and impartial jury under the 6th Amendment to the United States Constitution and § 11 of the Kentucky Constitution. Beyond this substantive right, each defendant also has a right to substantive due process in the picking of a jury under the 14th Amendment to the United States Constitution and § 2 of the Kentucky Constitution.

Legal Standard - RCr 9.36(1) provides the standard for when jurors should be struck for cause: “When there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified.” The test on appeal for failure to strike a juror for cause is abuse of discretion. Adkins v. Com., 96 S.W.3d 779 (Ky.2003).

The trial court must determine the existence of bias based on the particular facts of each case. Taylor v. Com., 335 S.W.2d 556 (Ky.1960).

“A potential juror may be disqualified from service because of connection to the case, parties, or attorneys and that is a bias that will be implied as a matter of law.” Sholler v. Com., 969 S.W.2d 706, 709 (Ky.1998) (emphasis added).

“Irrespective of the answers given on voir dire, the court should presume the likelihood of prejudice on the part of the prospective juror because the potential juror has such a close relationship, be it familial, financial or situational, with any of the parties, counsel, victims or witnesses.” Sholler v. Com., 969 S.W.2d 706, 709 (Ky.1998), Montgomery v. Com. 819 S.W.2d 713 (Ky.1992). “Some relationships between a potential juror and an attorney, party, victim, or witness are so close that the implied bias from the relationship ‘transgresses the concept of a fair and impartial jury.’” Cochran v. Com., 114 S.W.3d 837, 840 (Ky.2003).

“Once that close relationship is established, without regard to protestations of lack of bias, the court should sustain a challenge for cause and excuse the juror.” Sholler v. Com., 969 S.W.2d 706, 709 (Ky.1998), Ward v. Com., 695 S.W.2d 404 (Ky.1985).

Resolving Doubts About Bias - “Even where jurors disclaim any bias and state they can give the defendant a fair trial, conditions may be such that their connection would probably subconsciously affect their decision in the case. It is always vital to the defendant in a criminal prosecution that doubt of unfairness be resolved in his favor.” Fugate v. Com., 993 S.W.2d 931 (Ky.1999), Sholler v. Com., 969 S.W.2d 706 (Ky.1998), Randolph v. Com., 716 S.W.2d 253 (Ky.1986), overruled on other grounds.

STRIKES FOR CAUSE, EXAMPLES

Juror Fails to Meet Statutory Qualifications – The factors which disqualify a person for jury service are set forth in KRS 29A.080(2)(g) and 29A.130. Counsel may particularly wish to ask if any jurors have served on a grand jury within the last 24 months prior to their current term of service on the petit jury (the disqualification period used to be 12 months). See, e.g. Musgrove v. Com., 2006 WL 3333351 (Ky.App.2006), unpublished.

Juror Has Formed Opinion Regarding Guilt - Neace v. Com., 230 S.W.2d 915 (Ky.1950), Montgomery v. Com., 819 S.W.2d 713 (Ky.1992), Thompson v. Com., 862 S.W.2d 871, 875 (Ky.1993).

Juror Has Trouble Accepting Legal Principles - Juror demonstrated a serious problem accepting the concepts of a defendant’s right to remain silent, the burden of proof, and the presumption of innocence. Humble v. Com., 887 S.W.2d 567 (Ky.App.1994). See also Hayes v. Com., 175 S.W.3d 574 (Ky.2005), for a full discussion.

The following is meant to be illustrative but not exhaustive.

Juror Has A Close Relationship With a Party:

Juror discussed the case with a relative of the victim. Thompson v. Com., 862 S.W.2d 871, 875 (Ky.1993).

Married to a person who was a second or third cousin of the victim. Marsch v. Com., 743 S.W.2d 830 (Ky.1987).

First cousin to victim. Pennington v. Com., 316 S.W.2d 221 (Ky.1958).

Juror’s mother was a first cousin to victim’s mother. Leadingham v. Com., 201 S.W. 500 (Ky.1918).

Juror’s wife was a second cousin of defendant. Smith v. Com., 734 S.W.2d 437 (Ky.1987).

But see George v. Com., 885 S.W.2d 938 (Ky.1994), where the Court held that no error occurred when the trial court allowed a juror to remain on the jury after she realized during testimony that she was the victim’s third cousin.

Juror Has A Close Relationship With a Witness:

Juror’s being related to and living in the same rural area of the county with the complaining witness’s boyfriend, and being married to boyfriend’s cousin, may have justified a challenge for cause. Anderson v. Com., 864 S.W.2d 909, 911 (Ky.1993).

Where juror, an investigative social worker, was employed by CHR, the same organization with which a key Commonwealth witness was employed, and was assigned to the same unit as two key Commonwealth witnesses, it was an abuse of discretion to fail to excuse the juror for cause. Alexander v. Com., 862 S.W.2d 856, 864 (Ky.1993), overruled on other grounds.

Juror knew both the Commonwealth Attorney and the chief investigating officer in the crime. Thompson v. Com., 862 S.W.2d 871, 875 (Ky.1993).

Juror was a friend of the chief investigating officer. Thompson v. Com., 862 S.W.2d 871, 875 (Ky.1993).

Juror was the brother of a sheriff who was active in the prosecution of the case. Hayes v. Com., 458 S.W.2d 3 (Ky.1970).

First cousin to a key prosecution witness. Sanborn v. Com., 754 S.W.2d 534 (Ky.1988).

Wife of the arresting police officer. Calvert v. Com., 708 S.W.2d 121 (Ky.1986).

Juror who played little league baseball and went to high school with a witness for the prosecution ten years before trial, but who denied any continuing social relationship with the witness, had to be excused for cause in prosecution for murder and burglary, where witness appeared ambivalent as to whether prior relationship would affect his determinations of credibility. Fugate v. Com., 993 S.W.2d 931 (Ky.1999).

Juror Has A Close Relationship With Attorney:

Prospective and actual jurors who had previously been represented by the prosecutor and who stated they would seek out such representation in the future (although attorney/client relationship does not automatically disqualify a juror). Fugate v. Com., 993 S.W.2d 931, 938 (Ky.1999), Riddle v. Com., 864 S.W.2d 308 (Ky.1993).

Juror knew both the Commonwealth Attorney and the chief investigating officer in the crime. Thompson v. Com., 862 S.W.2d 871, 875 (Ky.1993).

Juror had business dealings with the prosecution. Thompson v. Com., 862 S.W.2d 871, 875 (Ky.1993).

Juror’s wife and the prosecutor were first cousins by marriage (however, relationship by blood and affinity are treated the same for purposes of juror disqualification). Thomas v. Com., 864 S.W.2d 252, 256-7 (Ky.1993).

Uncle of the Commonwealth Attorney. Ward v. Com., 695 S.W.2d 404, 407 (Ky.1985).

Secretary of the Commonwealth Attorney. Position gave rise to a loyalty to employer that would imply bias. Randolph v. Com., 716 S.W.2d 3 (Ky.1986), overruled on other grounds.

Manager of an ambulance service, which had a contract with the Ambulance Board for which the prosecutor was the attorney, and who had been asked as manager of the Ambulance Board to participate in the search for the defendants (who were charged with escape) and who had been held hostage in a previous escape. Montgomery v. Com., 819 S.W.2d 713 (1992).

County attorney at the time of the defendant’s preliminary hearing. Godsey v. Com., 661 S.W.2d 2 (Ky.App.1983).

Juror was being represented by the prosecutor on a legal matter at the time of trial. Montgomery v. Com., 819 S.W.2d 713 (Ky.1992).

Prosecutor was cousin’s son-in-law. Montgomery v. Com., 819 S.W.2d 713 (Ky.1992).

But see Sholler v. Com., 969 S.W.2d 706, 709 (Ky.1998), wherein the trial court did not abuse its discretion in refusing to dismiss for cause a potential juror who knew the Commonwealth attorney through mutual friends and their mutual membership in a large card club.

Juror Has Other Biases:

Where the defendant, on trial for sexual crimes against his seven year-old daughter, is black, his wife is white, and their child is biracial, a juror who expressed a distaste for “mixed marriages,” and stated he would judge the wife’s credibility a degree differently than he would judge the credibility of other witnesses, should have been excused for cause. Alexander v. Com., 862 S.W.2d 856, 864 (Ky.1993), overruled on other grounds.

Where juror stated (1) he was racially biased, (2) he left his neighborhood because young black men were hanging around in the area, (3) when he walked into the courtroom, he assumed Appellant was the accused because of the color of his skin, and (4) he was opposed to, in fact offended by, inter-racial relationships, he should have been excused for cause. Gamble v. Com., 68 S.W.3d 367, 373 (Ky.2002).

Jurors related to prison employees, who knew many prison employees, whose two best friends and two brothers worked at the prison, and had discussed the case with their brothers should have been struck for cause. Thompson v. Com., 862 S.W.2d 871, 875 (Ky.1993).

Former police officer and present deputy sheriff. Montgomery v. Com., 819 S.W.2d 713 (Ky.1992). But see Sholler v. Com., 969 S.W.2d 706, 708 (Ky.1998), where the court reaffirmed the principle espoused in Sanders v. Com., 884 S.W.2d 665 (Ky.1990), cert. denied, 502 U.S. 831, 112 S.Ct. 107, 116 L.Ed.2d 76 (1991), which held that police officers are not disqualified per se to serve as jurors in criminal cases.

Employee of the prison from which defendants escaped and who acknowledged he would give more credibility to a law enforcement officer’s testimony and would feel “bad” about acquitting the defendants if proof was not sufficient to show guilt. Montgomery v. Com., 819 S.W.2d 713 (Ky.1992).

Outside patrolman and guard for a prison who acknowledged he had spoken with persons in the prison regarding the escape. Montgomery v. Com., 819 S.W.2d 713 (Ky.1992).

REHABILITATING BIASED JURORS

There is simply no “magic question” such as, “Can you set aside what you have heard, your connection, your religious beliefs, etc., and make a decision based only on the evidence and instructions given by the Court?” Montgomery v. Com., 819 S.W.2d 713, 717-718 (Ky.1992). In Montgomery, the Court declared “the concept of ‘rehabilitation’ is a misnomer in the context of choosing qualified jurors and direct[ed] trial judges to remove it from their thinking and strike it from their lexicon.” Id. at 718. This basic principle has been repeatedly upheld by the Court. Hodge v. Com., 17 S.W.3d 824 (Ky.2000), Gill v. Com., 7 S.W.3d 365 (Ky.1999).

Where potential jurors’ attitudes and past experiences created a reasonable inference of bias or prejudice, their affirmative responses to the “magic question” did not eradicate the bias and prejudice. Alexander v. Com., 862 S.W.2d 856, 865 (Ky.1993), overruled on other grounds.

Once a potential juror expresses disqualifying opinions, the potential juror may not be rehabilitated by leading questions regarding whether she can put aside those opinions and be fair and impartial. Thomas v. Com., 864 S.W.2d 252, 258 (Ky.1993), overruled on other grounds (juror expressing strong opinion on death penalty). “Even where jurors disclaim any bias and state that they can give the defendant a fair trial, conditions may be such that their connection [to the case or the parties] would probably subconsciously affect their decision in the case.” Thomas at 255. See also Gamble v. Com., 68 S.W.3d 367 (Ky.2002) (juror expressing strong racial bias).

The Kentucky Supreme Court has also held that the answers of prospective jurors “to leading questions, that they would disregard all previous information, opinions and relationships should not be taken at face value.” Marsch v. Com., 743 S.W.2d 830, 834 (Ky.1988) (emphasis added). “Mere agreement to a leading question that the jurors will be able to disregard what they have previously read or heard, without further inquiry, is not enough...to discharge the court’s obligation to determine whether the jury [can] be impartial.” Miracle v. Com., 646 S.W.2d 720, 722 (Ky.1983).
PEREMPTORY STRIKES

Legal Standard – In Thomas v. Com., 864 S.W.2d 252 (Ky.1993), the court established a bright line rule which required automatic reversal whenever a defendant had to use his peremptory strikes in order to remove jurors who should have been struck for cause. The premise of the rule was that a defendant is entitled to the free use of all his peremptories without having to use them on jurors who should have already been removed. This rule was abandoned in Morgan v. Com., 189 S.W.3d 99 (Ky.2006), overruling Thomas.

However, Morgan was itself overruled on December 20, 2007 in Shane v. Com., 2007 WL 4460982 (Ky.2007), to be published, not yet final. So the Thomas rule is once again the law: being forced to use a peremptory challenge on a juror who should have been struck for cause is a denial of the full use of a defendant’s peremptory strikes and, as such, is reversible error per se.

Number of - In District Court each side gets 3 peremptory strikes, in Circuit Court each side gets 8. KRS 29A.280(1) and RCr 9.40(1).

Additional peremptories are required when alternate jurors are seated and also when co-defendants are tried together. RCr 9.40(1),(2), and (3). When alternates are seated, there is one more strike per side and also one more per defendant. In addition, when co-defendants are tried together the defense gets one more defense strike for each co-defendant, to be exercised independently of any other defendant.


Springer v. Com., 998 S.W.2d 439 (Ky.1999). “[T]he basic entitlement to peremptory challenges under RCr 9.40(1) is eight for the Commonwealth and eight for the defense. If more than one defendant is being tried, the defendants are entitled to a total of ten peremptory challenges: eight to be exercised jointly pursuant to RCr 9.40(1), and one each to be exercised independently pursuant to RCr 9.40(3). If one or two additional (alternate) jurors are seated, the defendants are entitled to a total of thirteen peremptory challenges: nine to be exercised jointly pursuant to RCr 9.40(1) and (2); one each to be exercised independently pursuant to RCr 9.40(3); and an additional one each to exercised independently pursuant to RCr 9.40(2)....” Id., 444.

The exception is that in cases with just a single defendant and alternate jurors, the defendant only gets one extra peremptory, like the prosecution, for a total of 9. The reasoning is that, if there are not multiple co-defendants, there is no “side,” but rather just the single defendant. Stopher v. Com., 57 S.W.3d 787 (Ky.2001), Furnish v. Com., 95 S.W.3d 34 (Ky.2002).

Practice Tip: You must object to not getting your correct number of peremptories. Failure to give the correct number of peremptories is grounds for automatic reversal. The objection is waived, however, once the jury is sworn. Springer v. Com., 998 S.W.2d 439 (Ky.1999), Com. v. Young, 212 S.W.3d 117 (Ky.2006).

BATSON CHALLENGES

The Equal Protection Clause of the 14th Amendment prohibits the discriminatory use of peremptory strikes in order to exclude members of a cognizable minority from participation in jury service. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Batson applies to both prosecutors and defendants. Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), Wiley v. Com., 978 S.W.2d 333 (Ky.App.1998).

“[A] criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race.” Powers v. Ohio, 499 U.S. 400, 401, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).

Batson challenges can also be made to peremptory strikes which are discriminatory on the basis of gender. J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), Wiley v. Com., 978 S.W.2d 333 (Ky.App.1998). (Hannan v. Com., 774 S.W.2d 462 (Ky.App.1989), which says that Batson does not apply to gender discrimination in the use of jury strikes, was decided before J.E.B.)

Batson challenges must be made before the swearing of the jury and the discharge of the remainder of the jury panel. RCr 8.18, Dillard v. Com., 995 S.W.2d 366 (Ky.1999), Gamble v. Com., 68 S.W.3d 367 (Ky.2002).

The Batson process has three steps: first, the objector must make a prima facie showing of purposeful discrimination in the opponent’s exercise of his or her peremptory strikes. The traditional Batson situation obtains when a defendant is a member of a minority and the jurors being struck are members of the same minority. In that situation, a prima facie case would involve a showing that a) the defendant is a member of a cognizable racial group, b) the prosecution used peremptory strikes to remove jurors of the defendant’s race, and c) the facts and circumstances raise the inference that the prosecutor excluded the jurors on the basis of their race. Remember, though, that under Powers, supra, the defendant no longer has to be of the same race or gender as the excluded jurors.

Second, if the court rules that a prima facie case has been made, then the burden shifts to the prosecutor to offer an alternative non-discriminatory explanation of the use of his peremptories. The explanation offered need not rise to the level of justifying a strike for cause, and may not even be particularly plausible. But it must be race- or gender-neutral on its face. The information the prosecutor points to does not have to be proven true, but simply offered in good faith. It can come to the prosecutor through means outside of direct questioning of the juror, such as the impressions or perceptions of counsel, personal knowledge, or jury questionnaires. Com. v. Snodgrass, 831 S.W.2d 176 (Ky.1992). It all depends on the facts and circumstances of each particular situation.

Nevertheless, self-serving explanations based merely on claims of intuition or mere disclaimers of any discriminatory motive are not sufficient to overcome a Batson challenge. Washington v. Com., 34 S.W.3d 376 (Ky.2000).

Last, the court must then decide – as it would decide any disputed fact – whether the proffered reasons are, firstly, neutral and reasonable and then it must also decide, secondly, that the reasons are not a pretext for purposeful discrimination. Clear and reasonably specific reasons for legitimately excluding jurors must meet both requirements. Gamble v. Com., 68 S.W.3d 367 (Ky.2002).

Practice Tip: Batson Issues. To preserve the issue on appeal, remember to renew your objection to the Commonwealth’s use of peremptories after the Commonwealth offers its reasons. If the prosecutor gives a reason not evident from the record, move for an evidentiary hearing. State again you do not believe the reasons given were non-discriminatory and object again to the seating of the jury before the jury is sworn.

CHECKLIST FOR STRIKING JURORS

1) Are We On the Record? - The voir dire of the prospective jurors must be recorded and transcribed, or videotaped, and designated as part of the record on appeal.

2) Do We Know Who We’re Talking About? – It is extremely common for appellate attorneys working on an appeal to experience great difficulty identifying which jurors were being discussed during any given motion to strike for cause. The identity of the juror cannot often be inferred from the video or audio record. A good practice is to simply preface your motion to strike with a short statement identifying the juror in question, such as “Your honor this motion is in reference to Mr. Smith, juror no. 22.” Then make your objection.

3) Get to the Point - Conduct as thorough a job of questioning as you are allowed to. General questions of fairness and impartiality are not sufficient. Counsel needs to ask specific questions related to the facts of the case and the theory of defense. Attempt to elicit facts known by the juror or opinions held by the juror that reasonably could be expected to influence her decision. “It often takes detailed questioning to uncover deep-seated biases of which the juror may not be aware. The cursory examination typically conducted by the trial court is often inadequate for this purpose.” Trial Practice Series, Jury Selection, The Law, Art, and Science of Selecting a Jury, 2nd ed., James J. Gobert, Walter E. Jordon (1992 Cumulative Supplement, p. 23), quoted in Miracle v. Com., 646 S.W.2d 720, 723 (Ky.1983), (Leibson, J., concurring).

4) Move to Strike - Defense counsel must assert a clear and specific challenge for cause to the prospective juror and must clearly articulate the grounds for the challenge. State the name of the person you are challenging especially if your trial record will be on videotape. Challenge for cause all persons you believe the law requires to be stricken.

List every reason that would require removal of the juror. In some appellate opinions, the courts have assessed the bias of jurors by listing several areas of bias which, when combined, required removal for cause. See Montgomery v. Com., 819 S.W.2d 713 (Ky.1992).

5) Peremptories - You must use all your peremptory challenges and the record must reflect that. Failure to use all of your peremptories waives the right on appeal to object to any jurors who remain on the jury. See, e.g., Baze v. Com., 965 S.W.2d 817 (Ky.1997). However, the prosecution can agree to give up some of its strikes. Fitzgerald v. Com., 148 S.W.3d 817 (Ky.2004).

If you choose to use your peremptory challenges to remove jurors who should have been struck for cause, put into the record that you are doing so, and state by name the jurors you would have used the peremptories on, if you had not had to use them on the jurors who should have been struck for cause. Or write the names on a note and have it entered into the record. Ask for additional peremptory challenges in order to be able to use your peremptories in the way they were intended. This will preserve the issue for review.

6) Strike Sheets - Be sure the juror strike sheets are made part of the record on appeal. RCr 9.36(4), CR 75.07(4).

7) After Trial - When the defendant did not learn until after the trial that a juror was related to, and living in the same rural area of the county with, the complaining witness’s boyfriend, and was married to the boyfriend’s cousin, the proper procedure was to bring this information to the trial court’s attention in a motion for a new trial. Anderson v. Com., 864 S.W.2d 909, 911 (Ky.1993).

EXERCISING PEREMPTORIES

RCr 9.36 (2) provides: “After the parties have been given the opportunity of challenging jurors for cause, each side or party having the right to exercise peremptory challenges shall be handed a list of qualified jurors drawn from the box equal to the number of jurors to be seated plus the number of allowable peremptory challenges for all parties. Peremptory challenges shall be exercised simultaneously by striking names from the list and returning it to the trial judge.”

The Commonwealth can give up peremptory strikes if it looks like the remaining jury pool is getting too small. Fitzgerald v. Com., 148 S.W.3d 817 (Ky.2004). The defendant, however, must use all his peremptories or he waives the issue of any biased jurors sitting on the jury. See, e.g., Baze v. Com., 965 S.W.2d 817 (Ky.1997). Neither side can hold back peremptories to first see who the other side has struck. See Baze v. Com., 965 S.W.2d 817 (Ky.1997).
SWEARING OF THE JURY

Some courts swear the jurors to answer truthfully the questions they will be asked, prior to the beginning of voir dire. According to RCr 9.36(3), however, administering the actual oath of a juror found in KRS 29A.300 comes after the strikes for cause and the peremptory strikes, when the final jury which will try the case is finally sat. KRS 29A.300 says: “The court shall swear the petit jurors using substantially the following oath ‘Do you swear or affirm that you will impartially try the case between the parties and give a true verdict according to the evidence and the law, unless dismissed by the court?’” The swearing of the jury is the moment when double jeopardy protections attach, and the moment after which no further challenges can be made to the composition of the jury.