ORDER OF TRIAL
The order of the guilt/innocence phase of a trial is governed by RCr 9.42. For the order of trial in the sentencing phase of a felony cases, see KRS 532.055(2)(c). The PFO statute is KRS 532.080. The death penalty sentencing statute is KRS 532.025. See also “Bifurcation.”
RCr 9.42 allows rebuttal evidence from either party. The rule regarding rebuttal evidence is that the Commonwealth should present all of its substantive evidence concerning the elements of the offense in its case-in-chief instead of waiting to present it in rebuttal, especially if the defense has already rested. It is taking undue advantage of a defendant to withhold important evidence till rebuttal. See, e.g., Archer v. Com., 473 S.W.2d 141 (Ky.1971), and Gilbert v. Com., 633 S.W.2d 69 (Ky.1982).
In Rowe v. Com., 50 S.W.3d 216 (Ky.App.2001), it was error for the trial court to allow the prosecution to introduce evidence of the defendant’s charges involving disorderly conduct and the use of obscene language in public as rebuttal to the defendant’s assertion that he had never used obscene language in public. Whether the defendant used obscene language was entirely collateral to the issue of whether the defendant assaulted the victim.
The defendant’s prior convictions can be used to impeach him on the issue of credibility, or they can be used to impeach any character witness called by the defendant. But when character was not at issue, it was improper for the prosecution to offer those convictions in rebuttal in order to show the bad character of the defendant. The convictions were inadmissible for that purpose. Hayes v. Com., 175 S.W.3d 574 (Ky.2005).
ANNOUNCING “READY”
Announcing “ready” waives objections to the Commonwealth’s non-compliance with discovery obligations. Sargent v. Com., 813 S.W.2d 801 (Ky.1991), Barclay v. Com., 499 S.W.2d 283 (Ky.1973).
SEPARATION OF WITNESSES
Separation of witnesses under KRE 615 is mandatory once requested by counsel and only those who fall under a clear exception to the rule should be allowed to hear the testimony of other witnesses. Mills v. Com., 95 S.W.3d 838 (Ky.2003).
Lead investigators are usually exempt from separation under exception (2) of the rule, which allows for “designated representatives,” and the Commonwealth does not have to demonstrate that they are “essential to the presentation of the case” under exception (3). Humble v. Com., 887 S.W.2d 567 (Ky.App.1994).
Other witnesses however, including victims, must meet the “essential to the presentation of the case” exception under (3) and generally should not be allowed to remain in the courtroom during testimony. See Justice v. Com., 987 S.W.2d 306 (Ky.1998), and especially Mills v. Com., 95 S.W.3d 838 (Ky.2003), in which it was ruled prejudicial error to allow the victim to remain in the courtroom when the victim was the only witness to the robbery, his credibility was crucial, and listening to the other Commonwealth’s witnesses describe the perpetrators and the details of the robbery allowed the victim to take the stand with a completely refreshed memory.
If a witness violates the rule, the court cannot automatically preclude the witness’ testimony, but must hold a hearing before ruling. Henson v. Com., 812 S.W.2d 718 (Ky.1991).
Counsel is free to talk to his or her own witnesses, but it is a violation of the rule to communicate to witnesses who are yet to testify what the testimony of other witnesses has been. Smith v. Miller, 127 S.W.3d 644 (Ky.2004).
READING THE INDICTMENT
See the “Practice Tip” under “Bifurcation.” Many judges also read the first part of RCr 9.56 after reading the charges: “The law presumes the defendant to be innocent of a crime, and the indictment shall not be considered as evidence or as having any weight against him or her.”
PROSECUTION THEORY OF THE CASE
Prosecutors sometimes prefer to try a case in the alternative. (See, e.g., Com. v. Wirth, 936 S.W.2d 78 (Ky.1997), in which the prosecution did not have to elect which part of the DUI statute it was proceeding under.) In a murder case, for instance, a prosecutor might want to argue that the shooting of the victim was either wanton or intentional. Of course the problem with this, from a defense perspective, is that it deprives the defendant of his right to a unanimous verdict. § 7 of the Kentucky Constitution and RCr 9.82(1). The general rule is that alternative theories for the same offense, and “combination” instructions providing for both alternatives, do not violate the right to a unanimous verdict if the evidence would support a conviction under either theory. Wells v. Com., 561 S.W.2d 85 (Ky. 1978). On the other hand, when the jury is presented with alternative theories of guilt in the instructions, and one of those theories is unsupported by the evidence, then the right to a unanimous verdict has been denied. For example, in Boulder, the evidence at trial proved only intentional assault but the jury instructions allowed the jury to choose between either intentional or wanton states of mind. Boulder v. Com., 610 S.W.2d 615 (Ky.1980), overruled on other grounds.
See also Stumpf v. Mitchell, 367 F.3d 594 (6th Cir.2004), overruled on other grounds by Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398. 162 L.Ed.2d 143 (2005), in which it was ruled a due process violation for a prosecutor to use two conflicting theories concerning the identity of the shooter to convict both the defendant and his accomplice in two separate proceedings.
Note that a defendant cannot alternatively argue two mutually exclusive theories of defense, such as self-defense and accident. Grimes v. McAnulty, 957 S.W.2d 223 (Ky.1998).
PROSECUTION OPENING STATEMENT
The prosecutor may state the nature of the charge and the evidence upon which he or she will rely to support it. RCr 9.42(a).
“The office of an opening statement is to outline to the jury the nature of the charge against the accused and the law and facts counsel relies upon to support it, so the jury may follow and understand the testimony as it falls from the lips of witnesses. It is highly improper to attempt to sway the jury by making statements as to facts which counsel knows he cannot prove or will not be permitted to introduce. It is never proper in an opening statement for counsel to argue the case or to give his personal opinions or inferences from the facts he expects to prove.” Turner v. Com., 240 S.W.2d 80 (Ky.1951).
The pre-recorded statements of witnesses cannot be played during opening statements. Fields v. Com., 12 S.W.3d 275, 281 (Ky.2000).
It is not reversible error for a prosecutor to fail to mention every element of the offense during his opening statement. Hourigan v. Com., 883 S.W.2d 497 (Ky.App. 1994).
It is reversible error for a prosecutor to discuss evidence that the court has ruled inadmissible. Linder v. Com., 714 S.W.2d 154 (Ky.1986), see also KRE 103(c).
If the prosecutor opens on evidence prejudicial to the defendant but fails to later introduce evidence to support it, the proper remedy is a motion for mistrial. Williams v. Com., 602 S.W.2d 148 (Ky.1980).
Practice Tip: PowerPoint Presentations. The Kentucky Court of Appeals agreed that PowerPoint presentations are essentially a “high-tech blackboard” in Compton v. St. Elizabeth Medical Center, Inc., 2005 WL 327116 (Ky.App.2005), unpublished. “The use of blackboards or other visual aids rests in the sound discretion of the trial court.” Meglemry v. Bruner, 344 S.W.2d 808, 809 (Ky.1961) overruled in part. If the prosecution intends to use a PowerPoint presentation: (1) Move to Review It in Advance. If it is an opening statement, the presentation must be an accurate reflection of the evidence. (2) Object to Prejudicial “Special Effects.” Computer-generated simulations, animations, and sound effects should not take the place of evidence. (3) Make Sure the Presentation Goes Into the Record on Appeal. In video jurisdictions, most court room cameras will not pick up presentations displayed on a wall or a screen. The cameras are pointed at the judge, attorney tables, and witness box, instead. Ask the court to have the prosecution put a copy of the presentation in the record.
Computer Generated Visual Evidence - Demonstrative computer generated visual evidence (CGVE) usually consists of still images or animation which merely illustrates a witness’ testimony, while substantive CGVE usually consists of computer simulations or recreations which are preared by experts and which are based on mathematical models in order to recreate or reconstruct an accident or event. The admissibility of CGVE is analyzed in the same way as hand-drawn diagrams or photographically created evidence; it has to be relevant, is subject to exclusion on grounds of prejudice, confusion, or waste of time, is subject to the trial court’s discretion over the mode and order of presentation of evidence, has to be authenticated by testimony of a witness that he or she has personal knowledge of the evidence’s subject matter, and that the evidence is accurate. CGVE which is merely illustrative of a witness’ testimony does not normally depend for admission on testimony as to how the data was gathered or put into the computer. Gosser v. Com., 31 S.W.3d 897 (Ky.2000).
PROSECUTION WITNESSES
Once a witness is subpoenaed, the witness can only be excused by the court. Defense counsel was entitled to rely on the fact that the Commonwealth had subpoenaed a witness and it was improper for the prosecutor to contact the witness and tell him he need not appear at trial. Anderson v. Com., 63 S.W.3d 135, 141 (Ky.2001).
In light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), statements against penal interest are no longer admissible in a criminal trial unless the defendant had the opportunity to confront the witness at the time the statement was made. Terry v. Com., 153 S.W.3d 794 (Ky.2005). See also U.S. v. Cromer, 389 F.3d 662 (6th Cir.2004), in which it was a violation of the confrontation clause for the investigating officer to tell the jury what the confidential informant said about the name of the person he sold drugs to, as well as the physical description of that person and what happened during the transaction.
The prosecutor cannot call a co-defendant to testify that he pled guilty to the charges, or introduce a co-defendant’s conviction on the same charges. The convictions of co-defendants are not substantive evidence. “‘It has long been the rule in this Commonwealth that it is improper to show that a co-indictee has already been convicted under the indictment.’ To make such a reference and to blatantly use the conviction as substantive evidence of guilt of the indictee now on trial is improper regardless of whether the guilt has been established by plea or verdict, whether the indictee does or does not testify, and whether or not his testimony implicates the defendant on trial.” Tipton v. Com., 640 S.W.2d 818 (Ky.1982), citing Parido v. Com., 547 S.W.2d 125 (Ky.1977) and Martin v. Com., 477 S.W.2d 506 (Ky.1972).
Reversible error occurred when the Commonwealth, over the defendant’s objection, called the defendant’s co-indictee to the stand knowing she would take the Fifth Amendment, and then asked her a question she then declined to answer on Fifth Amendment grounds. Higgs v. Com., 554 S.W.2d 74 (Ky.1977), see also Bush v. Com., 839 S.W.2d 550 (Ky.1992). It is improper to call a witness knowing he will refuse to testify. Combs v. Com., 74 S.W.3d 738, 742 (Ky.2002), citing Clayton v. Com., 786 S.W.2d 866 (Ky.1990).
Repeated unsolicited statements from the Commonwealth’s witness on direct examination give rise to the inference that either the witness or the Commonwealth is out of control and, together with other prosecutorial misconduct, can rise to the level of reversible error. Eldred v. Com., 906 S.W.2d 694 (Ky.1994), overruled on other grounds, citing Sanborn v. Com., 754 S.W.2d 534 (Ky.1988), overruled on other grounds.
It is reversible error requiring mistrial which no admonition can cure for a prosecutor to question a witness in order to assert the content of a former conversation with the witness. Assertions of fact from counsel concerning the contents of a prior conversation with the witness have the effect of making the prosecutor the witness and allow the prosecutor to testify to matters no witness has testified to. The prosecutor should not have been allowed to lead her own prosecution witness. Holt v. Com., 219 S.W.3d 731 (Ky.2007).
False Testimony – Due process was denied the defendant when the State’s key witness testified falsely that he had received no promise of consideration in return for his testimony and the Assitant State’s Attorney who had promised the consideration did nothing to correct the false testimony. A state may not knowingly use false evidence, including false testimony, to obtain a tainted conviction. This principle is implicit in any concept of ordered liberty and does not cease to apply simply because the false testimony goes only to the credibility of a witness. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
In order to justify reversal when the defendant’s conviction was based on false testimony and when the prosecutor did not know that the testimony was false, the defendant must show that there is a reasonable certainty that the testimony was false and that the conviction probably would not have resulted had the truth been known to the jury. Com. v. Spaulding, 991 S.w.2D 651 (Ky.1999).
Bolstering Witnesses – It is improper to permit a witness to testify that another witness has made prior consistent statements absent an express or implied charge against the declarant of recent fabrication or improper influence. Otherwise, the witness is simply vouching for the truthfulness of the declarant. Dickerson v. Com., 174 S.W.3d 451 (Ky.2005).
It was reversible error to allow the police detective to testify about the prior consistent statements of the victim in a sexual assault case when the victim had already given detailed testimony and the victim’s motive to fabricate, if it existed, remained the same from the start of the investigation to the time of trial. The detective’s testimony concerning the prior consistent statements had no probative value and was also highly prejudicial, as it served only to bolster the victim’s credibility. Smith v. Com., 920 S.W.2d 514 (Ky.1995)
Testimony of a social worker was inadmissible hearsay as an attempt to bolster the victim’s testimony where social worker testified before any attack had been made on victim’s credibility. Reed v. Com., 738 S.W.2d 818 (Ky.1987). It was reversible error to allow the social worker to unfairly bolster the credibility of the alleged victim. Smith v. Com., 920 S.W.2d 514 (Ky.1995).
A police officer was improperly allowed to bolster the credibility of an informant when he testified that the informant was reliable and that the informant’s work had always ended in convictions. Farrow v. Com., 175 S.W.3d 601 (Ky.2005).
Commonwealth’s witness was improperly allowed to testify while holding a Bible. Brown v. Com., 983 S.W.2d 513 (Ky.1999).
It was an inadmissible attempt to bolster the victim’s identification of the defendant when the police officer testified that the victim’s eyes “got larger” when she first spotted a photograph of the defendant. McGuire v. Com., 573 S.W.2d 360 (Ky.App.1978).
Investigative Hearsay – The police officer’s actions must somehow be at issue before this kind of testimony is relevant under KRE 401. Daniel v. Com., 905 S.W.2d 76. 79 (Ky.1995), Stringer v. Com., 956 S.W.2d 883, 887 (Ky.1997). For example, an officer cannot testify to what he was told by the radio dispatcher that caused him to pull the defendant’s car over unless the defendant has made that relevant by “opening the door” and claiming an improper motive in the stop. White v. Com. 5 S.W.3d 140, 142 (Ky.1999). Likewise, it is error to allow a police officer to testify to why he was suspicious of a defendant in a drug-trafficking case. Such testimony is based on hearsay and is also irrelevant. Gordon v. Com., 916 S.W.2d 176 (Ky.1995).
Furthermore, since a defendant can only make such testimony relevant by “opening the door” and attacking the officer or the investigation, this testimony will almost never be relevant during the Commonwealth’s direct examination.
Habit Evidence – Prosecution witnesses should not be allowed to testify to the habits or routines of a certain class of people in order to show that the defendant acted in the same way. What other people usually do is not evidence of what the defendant did. For example, it was reversible error for the prosecution’s witness to testify that the defendant matched the profile of a pedophile. “Profile” evidence is inadmissible in any criminal case to prove either guilt or innocence. Dyer v. Com., 816 S.W.2d 647, 652 (Ky.1991), overruled on other grounds. See also Tungate v. Com., 901 S.W.2d 41, 43 (Ky.1995) and Pendleton v. Com., 685 S.W.2d 549, 553 (Ky.1985). Likewise, it was error to admit testimony that methamphetamine users are usually skinny and that 85% of them also use the product. Hayes v. Com., 175 S.W.3d 574 (Ky.2005), and reversible error to allow testimony that 90% of all abused children delay the reporting of the abuse. Miller v. Com., 77 S.W.3d 566 (Ky.2002). Finally, it was error to solicit evidence that coal truck drivers run red lights and blow their horns, implying that the defendant, a coal truck driver, acted likewise. Johnson v. Com., 885 S.W.2d 951, 953 (Ky.1994).
Statements Made on Tape or Video – Most recorded interrogations include assertions from the officer that the defendant is not being truthful in some way. In Lanham v. Com., 171 S.W.3d 14 (Ky.2005), the court ruled that the detective’s comments could be heard by the jury in order to provide the context of the defendant’s replies, but that the statements were not to be introduced to prove the truth of the matter asserted, and that the trial court should give a limiting admonition to that effect. In Fields v. Com., 12 S.W.3d 275, 279-82 (Ky.2000), the court ruled that in the case of a video recording of the investigation of a crime scene, the video portion was admissible but the audio voiceover, including the repetition of the defendant’s alleged confession, was hearsay. See also Fulcher v. Com., 149 S.W.3d 363 (Ky.2004), in which the court also ruled that the audio portion of the video was hearsay, but the defendant failed to object. Compare Brown v. Com., 2005 WL 387437 (Ky.2005), in which an expert commented on the contents of a video. When a tape, such as a recording of a drug deal, is partially inaudible, the court must decide whether the problems are serious enough to mislead the jury or make the entire piece of evidence untrustworthy. Gordon v. Com., 916 S.W.2d 176, 180 (Ky.1995), Perdue v. Com., 916 S.W.2d 148, 155 (Ky.1995). An informant cannot act as an “interpreter” of the tape, clarifying inaudible sections as the tape is played. The witness must rather testify from memory, Gordon, supra, at 180. It is not within the discretion of a trial court to provide a jury with the prosecutor’s version of inaudible or indistinct portions of an audiotape. Sanborn v. Com., 754 S.W.2d 534 (Ky.1988), overruled on other grounds.
Charts – Admission of a chart drawn by an absent informant was hearsay and reversible error. Cross-examination of the witness concerning the hearsay did not waive the objection to the admission of the evidence. Salinas v. Com., 84 S.W.3d 913 (Ky.2002). It was error for the court to admit into evidence police-created crime scene reconstruction diagrams through the testimony of an officer who had not been present at the scene at the time of the shooting and thus did not have personal knowledge of the locations of persons and items represented in the diagram. His testimony was investigative hearsay. Gosser v. Com., 31 S.W.3d 897 (Ky.2000).
OBJECTIONS
Legal Standard – Formerly, KRE (a)(1) only required an attorney to state the grounds of an objection “upon request of the court.” For years this was the rule in Kentucky and it was also consistent with RCr 9.22. Effective May 1, 2007, however, KRE (a)(1) was amended to read: “Objection. If the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context.” So the best practice now is to state the grounds of the objection unless the context makes them obvious. Do not count on preserving error on appeal if you do not state the grounds of your objections.
If the trial court denies counsel an opportunity to approach the bench and explain the objection, do it “[a]t the first reasonable opportunity to preserve the record.” Anderson v. Com., 864 S.W.2d 909, 912 (Ky.1993).
Purpose of – Appellate courts view objections as giving the trial court the opportunity to do the right thing. For example: “It is the duty of counsel who wishes to claim error to keep current on the law, and to object with specificity so that the trial judge will be advised on how to instruct. The underlying purpose of such a rule is to obtain the best possible trial at the trial level and to call any error to the attention of the trial judge, thereby affording him the opportunity to give the correct instructions.” Gibbs. v. Com., 208 S.W.3d 848, 854 (Ky.2006).
And for example: “If there has been no motion for a directed verdict at the close of all the evidence, it cannot be said that the trial judge has ever been given the opportunity to pass on the sufficiency of the evidence as it stood when finally submitted to the jury.” Kimbrough v. Com., 550 S.W.2d 525, 529 (Ky.1997).
The entire philosophy of preservation is based on this principle. Appellate courts will not grant relief when the trial court was never given the opportunity to do so. “[T]he entire premise for the principle that issues not presented to the trial court are not preserved for appellate review is that the trial court should be afforded a reasonable opportunity to rule upon alleged errors that were not brought to his attention and otherwise could have been corrected at trial.” Manns v. Com., 80 S.W.3d 439, 442-43 (Ky.2002).
Ruling Required - If an objection is made, the party making it must insist on a ruling or the objection is waived. Hayes v. Com., 175 S.W.3d 574 (Ky.2005), Bell v. Com., 473 S.W.2d 820, 821 (Ky.1971), Harris v. Com., 342 S.W.2d 535, 539 (Ky.1960).
Request Relief - If an objection is overruled, the contemporaneous objection (see RCr 9.22) preserves the issue on appeal. On the other hand, if an objection is sustained, there is no further issue preserved for appeal unless the defendant also then requests a mistrial or admonition which is then denied. “An admonition is appropriate only if the objection is sustained.” Barnes v. Com., 91 S.W.3d 564, 568 (Ky.2002). “In the absence of a request for further relief, it must be assumed that appellant was satisfied with the relief granted, and he cannot now be heard to complain.” Baker v. Com., 973 S.W.2d 54, 56 (Ky.1998). “[M]erely voicing an objection, without a request for a mistrial or at least an admonition, is not sufficient to establish error once the objection is sustained.” Hayes v. Com., 698 S.W.2d 827, 829 (Ky.1985). The exact same situation obtains when a trial court offers an admonition and the defendant declines to accept it – it is the same as never asking for one. So request further relief!
Practice Tip: Cascade your objections. Start with mistrial. Accept an admonition if it is offered, without waiving the motion for mistrial. Tell the court what admonition you want the jury to be given.
Also, if the court refuses to admit evidence the defendant believes should be admitted, offering a limiting instruction along with the evidence will affect the standard of review on appeal. Failure to offer such an instruction, however, leaves the standard of review at palpable error. KRE 105(b).
Judge’s Job at Trial – As David Niehaus says in the Evidence Manual, 5th ed., p. 51, “Under the rules [of evidence], a judge is something more than an umpire waiting to be called upon to resolve an evidentiary dispute.” Aside from ruling on the order, mode of presentation, and admissibility of evidence, the two main duties of a trial judge, according to the Kentucky Rules of Evidence, are to: (1) help the jury find the truth, KRE 102 and 611(a)(i), and (2) make sure the jury is not misled or confused, KRE 403. Either of these can always serve as the grounds for an objection.
Constitutional Grounds – Failure to constitutionalize your grounds for objection could mean that your client may some day be barred from appealing to the Federal District Court or the U.S. Supreme Court. In order to appeal to either of those courts, the defendant will have to be able to show that the state court had an opportunity to consider and correct violations of federal constitutional rights. See Duncan v. Henry, 513 U.S. 364, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995). For example, United States Supreme Court Rule 14 says that a petition for a writ of certiorari must contain a statement specifying “the stage in the proceedings, both in the court of first instance and in the appellate courts, when the federal questions sought to be reviewed were raised; the method or manner of raising them and the way in which they were passed on by those courts....” See the enclosed chart.
Practice Tip: Joining a Co-Defendant’s Objections. Appellate courts will not automatically assume that a defendant has joined in his co-defendant’s objections or motions. Joining a motion must, therefore, be done explicitly on the record. Or file a notice that the defendant intends to join in all objections and remind the court again at the beginning of the trial.
CROSS-EXAMINATION
Scope – The Kentucky Rules of Evidence embody a rule of wide open cross-examination and allow questioning concerning any matter relevant to any issue in the case, subject to judicial discretion regarding the control of the interrogation of witnesses and the production of evidence. KRE 611, Derossett v. Com., 867 S.W.2d 195 (Ky.1993).
The credibility of a witness may always be questioned. KRE 607 says: “The credibility of a witness may be attacked by any party, including the party calling the witness.” KRE 611(b) says: “A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” Section 11 of the Kentucky Constitution and the Sixth Amendment of the United States Constitution preserve the right to confront witnesses.
According to KRE 611(a), cross-examination may be limited by the court in order to, “(1) make the interrogation and presentation effective for the ascertainment of the truth; (2) avoid needless consumption of time; and (3) protect witnesses from harassment or undue embarrassment.” The question then becomes, when do such limitations violate the fundamental constitutional rights at stake?
Any refusal to allow cross-examination on bias when the witness’ testimony is crucial to the prosecution’s case constitutes reversible error. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111 (1974), Com. v. Cox, 837 S.W.2d 898 (Ky.1992). In Cox the defendant was not allowed to conduct any cross-examination of the witness. Furthermore, the denial of effective cross-examination requires automatic reversal and prejudice need not be demonstrated. Eldred v. Com., 906 S.W.2d 694, 702 (Ky.1994), overruled on other grounds. Since a limitation on impeachment impinges on a defendant’s right to confrontation, a court should err on the side of allowing impeachment. Caudill v. Com., 120 S.W.3d 635 (Ky.2003).
Legal Standard - In Weaver v. Com., 955 S.W.2d 722, 726 (Ky.1997), the court held that, in order for the right to confront to be satisfied, the jury must be given enough information to make the desired inference. In Bratcher v. Com., 151 S.W.3d 332 (Ky.2004), and Com. v. Maddox, 955 S.W.2d 718, 721 (Ky.1997), the court held that “So long as a reasonably complete picture of the witness’ veracity, bias and motivation is developed, the judge enjoys power and discretion to set appropriate boundaries.” Maddox at 721, quoting U.S. v. Boylan, 898 F.2d 230, 254 (1st Cir.1990). In Beaty v. Com., 125 S.W.3d 196 (Ky.2003), the court held that a defendant must be allowed “reasonable” cross-examination in order to demonstrate the witness’ bias, animosity, or any other reason why the witness might testify falsely. In Spears v. Com., 558 S.W.2d 641, 642 (Ky.App.1977), the court held that “In weighing the testimony the jury should be in possession of all facts calculated to exert influence on a witness.”, quoted in Davenport v. Com., 177 S.W.3d 763, 768 (Ky.2005). It is generally reversible error to refuse to allow cross-examination when “the facts clearly support an inference that the witness was biased, and when the potential for bias exceeds mere speculation.” Davenport, supra, at 769.
The test on review of a court’s refusal to allow cross-examination is whether “a reasonable jury might have received a significantly different impression of the witness’ credibility had defense counsel been permitted to pursue his proposed line of cross-examination.” Davenport v. Com., 177 S.W.3d 763 (Ky.2005), Com. v. Cox, 837 S.W.2d 898, 901 (Ky.1992), quoting Olden v. Kentucky, 488 U.S. 227, 232, 109 S.Ct. 480, 483, 102 L.Ed.2d 513, 520 (1988), quoting Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674, 683 (1986).
Parole or Probation – Refusal to allow cross-examination on the fact that the witness was on probation was reversible error when the witness was crucial to Commonwealth’s case, and the witness’s testimony lacked corroboration. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), Com. v. Cox, 837 S.W.2d 898 (Ky.1992). But compare Davenport, supra, in which the witness’ probation was in another county and his testimony was corroborated by other prosecution witnesses.
Pending Charges – The general rule is that evidence that a witness has been arrested or charged with a criminal offense, as opposed to evidence of a conviction, is not admissible for purposes of attacking the witness’s credibility. See Moore v. Com., 634 S.W.2d 426 (Ky.1982). An exception to this rule is that a defendant may question a witness concerning criminal charges against him to demonstrate a motive to curry favorable treatment from the prosecution. Spears v, Com., 558 S.W.2d 641 (Ky. App.1977). The trial court should allow defense counsel to question a key prosecution witness about the possibility of a deal with the Commonwealth. Williams v. Com., 569 S.W.2d 139 (Ky.1978). Pending charges in another county, however, are not admissible for this purpose when the prosecutor is not in any position to grant any leniency to the witness. Bowling v. Com., 80 S.W.3d 405 (Ky.2002), see also Davenport, supra.
Prior Inconsistent Statements - A hostile witness may not escape impeachment with a prior inconsistent statement simply by saying, “I don’t remember.” Wise v. Com., 600 S.W.2d 470 (Ky.App.1978). See the Evidence Manual, 5th Edition, p. 62, for a handy script to use in laying a foundation under KRE 613.
DIRECTED VERDICTS
Legal Standard – The test for directed verdict at trial is “the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.” Com. v. Benham, 816 S.W.2d 186, 187 (Ky.1991).
“[T]he trial court is expressly authorized to direct a verdict for the defendant if the prosecution produces no more than a mere scintilla of evidence.” Benham, supra, at 187-188. See also Susan Balliet’s article: “Directed Verdicts in Kentucky: What’s Reasonable?” The Advocate, vol. 29, no. 3, July 2007, pp. 5-9.
Must Be Specific – An unspecific, general motion for directed verdict will be viewed on appeal as little better than no motion at all. In order to preserve the issue for appeal, the motion must specify the grounds for the motion. Failure to state a specific ground gives the appellate court nothing to rule on. CR 50.01 says, in part: “A motion for directed verdict shall state the specific grounds therefore.” Pate v. Com., 134 S.W.3d 593 (Ky.2004), Potts v. Com., 172 S.W.3d 345 (Ky.2005).
Remember that if the prosecutor opens on evidence prejudicial to the defendant but fails to later introduce evidence to support it, the proper remedy is a motion for mistrial. Williams v. Com., 602 S.W.2d 148 (Ky.1980).
