Kentucky DPA's The Advocate,
Vol. 20, No. 1, January 1998
1997 Evidence Law Update
1997 has been something of
sabbatical year for me in the Advocate. However, during the year
since the last edition of the Advocate Evidence and Preservation Manual,
the appellate courts have turned out 31 opinions that contain important
rulings on evidence law. It is therefore time for an update. Because of
the volume and because of the format of the Evidence and Preservation
Manual, this article will organize the holdings by rule number. To
conserve space, the full citation of the case will be presented only in
an alphabetical table at the end of the article. In the entries I will
make a reference to the case name and to the page number on which the evidence
point appears in the opinion. This update covers opinions appearing in
the Southwest Reporter from December 10, 1996 to November 25, 1997,
closing with Volume 953, No. 2.
One other interesting and
useful development during 1997 has been the recent publication of a Kentucky
evidence manual by Professor Richard Underwood of the University of Kentucky.
This book, titled Kentucky Evidence, 1997/98 Courtroom Manual is
published by the Anderson Publishing Company of Cincinnati and is available
for about $40, including postage and handling. This manual is rather detailed
and is organized by rule number. It has a number of useful features including
the revised Study Committee Notes. The manual also contains a helpful listing
of pre- rules Kentucky cases, Kentucky cases citing the rules, and useful
federal cases. The manual is not limited to criminal practice and therefore
contains a good deal of information that is of use to lawyers handling
civil cases as well. This manual is well worth the $40 investment. It is
a complement to the Advocate Evidence and Preservation Manual which
will continue to focus on situations and problems faced by attorneys trying
criminal cases who want a short and specific resource for their trial notebook.
KRE 103
Commonwealth v. Kina,
p. 809 - Because the trial judge is in a unique position to judge witness
credibility, an appellate court, when reviewing a decision to admit or
exclude evidence, will accept findings of fact unless they are clearly
erroneous and will not reverse unless the appellant demonstrates that the
ruling was an abuse of discretion.
Brock v. Commonwealth,
p. 29 - However, the discretion of the trial judge is not unlimited. This
case reversed on the ground that exclusion as cumulative evidence was outside
the discretion normally exercised by a trial judge.
KRE 103(a)(1)
Kesler v. Shehan,
p. 256 - Where evidence is admissible for one purpose, a general motion
to strike does not preserve error for the appellate court. The trial judge
must be given a chance to rule on a specific request.
Commonwealth v. Petrey,
p. 419 - Defendant failed to make a timely objection to DNA expert's qualifications,
testimony, procedures or findings and therefore waived his right to object
on appeal.
KRE 103(c)
Brock v. Commonwealth,
p. 30 - Any attempts to impeach or refresh with a taped statement must
first be conducted in chambers outside the hearing of the jury to avoid
prejudice if evidence is ruled inadmissible.
Luttrell v. Commonwealth,
p. 218 - All rulings on expert witness status should be out of the hearing
of the jury and there should never be a declaration that a witness is an
expert.
KRE 103(d)
McKinney v. Venters,
p. 242 - In DNA cases, it is appropriate for the judge to rule after the
testing has occurred and when the party indicates that it will offer evidence
for admission. The objection should come at that point. This case arose
from an original action seeking to prohibit testing by the Commonwealth
that would destroy the sample.
KRE 103(e)
Commonwealth v. Petrey,
p. 419 - The Supreme Court held that the Court of Appeals erred when it
considered the defendant's claim about DNA despite his failure to preserve
it in the trial court.
Brock v. Commonwealth,
p. 28 - The Court held that this rule parallels RCr 10.26 and requires
a substantial possibility that the result would have been different but
for the error. The Court also cited federal cases which hold that this
rule requires showing that the error seriously affected the fairness, integrity
or public reputation of judicial proceedings.
KRE 104(a)
Parker v. Commonwealth,
p. 213-214 - The Court cites Huddleston v. U.S. as the standard
for determining KRE 404(b) admissibility. The judge must ask whether there
is evidence from which the jury reasonably could infer that the defendant
had committed the prior acts.
KRE 105
Cormney v. Commonwealth,
p. 634 - Court held that erroneous testimony about the DUI presumption
in a manslaughter case was not reversible. The problem was satisfactorily
cured by an admonition.
KRE 106
Commonwealth v. Collins,
p. 813-814 - The Court held that once the subject of a diary was raised,
the door was open for admission of other parts of the diary if relevant.
The completeness rule exists to prevent a misleading impression. The inquiry
is whether the meaning of the admitted part is altered by other portions
that should, in fairness, be admitted.
KRE 107
Commonwealth v. King,
p. 808 - The parties on appeal raised the issue of conspiracy pursuant
to KRE 801A. The Court declined to consider the rule because the prosecution
arose before July, 1992 and instead decided the case on common law conspiracy
principles.
KRE 401
Wolfenbarger v. Commonwealth,
p. 774 - Court of Appeals held that on remand of a domestic assault case
trial judge should not allow testimony of a neighbor of defendant's ex-wife
about the effect the crime had on ex-wife because it is irrelevant.
Newkirk v. Commonwealth,
p. 692 - Child sex abuse accommodation syndrome, even if valid scientific
evidence, is irrelevant to the issue of identification of the perpetrator.
Bowling v. Commonwealth,
p. 302 - At penalty phase of death-eligible murder case some background
information about the deceased is relevant to full understanding of the
nature of the crime. However, not every detail about the deceased is relevant
.
Foley v. Commonwealth,
p. 887 - On cross- examination, any relevant subject may be brought up,
including credibility of the of the witness.
Robey v. Commonwealth,
p. 618 - Commonwealth tried to justify other acts evidence to show identity,
among other grounds. The Court noted that identity was not an issue because
the defendant admitted the acts but claimed consent.
Toyota v. Epperson,
p. 415 - "After acquired information" could not be relevant as the motive
for discharge of an employee.
Brock v. Commonwealth,
p. 28 - A witness's observation of the defendant's demeanor on a certain
day did not tend to prove defendant's state of mind 12 days later.
Carman v. Dunaway Timber
Co., p. 570 - Judge properly allowed evidence of industry custom
to show the standard of care required in a tort case.
Collins v. Commonwealth,
p. 575 - The defendant opened the door to a social worker's testimony about
a child prosecuting witness's explanation for initially denying sexual
abuse.
Parker v. Commonwealth,
p. 214 - Judge properly found prior acts relevant to show defendant's animus
toward a child and to negate accident or mistake. The defendant testified
that he did not know how the child was injured.
Ray v. Stone,
p. 224 - A criminal conviction may be used to collaterally estop any contrary
claim by estopped party in a later civil case.
KRE 402
Brown v. Commonwealth,
p. 248 - A defendant claimed photographs were irrelevant because he had
admitted the acts alleged. The Court held that when the defendant pleads
not guilty, all elements of the charge are at issue and selected photographs
may be probative.
Kesler v. Shehan,
p. 256 - Evidence otherwise irrelevant may become relevant to rebut testimony.
Robey v. Commonwealth,
p. 618 - Because defendant admitted the act charged, his identity was not
issue, and therefore evidence offered for that purpose was irrelevant.
Foley v. Commonwealth,
p. 886 - Evidence that defendant threatened or otherwise influenced witnesses
in an attempt to suppress testimony is relevant where the threats are made
by or on behalf of the defendant.
KRE 403
Robey v. Commonwealth,
p. 618 - In KRE 404(b) cases, the probative value of the evidence must
substantially outweigh the danger of undue prejudice. In this case, an
act 16 years previous was deemed too remote.
Parker v. Commonwealth,
p. 212 - Photographs which supplement the testimony of a medical examiner
and other expert testimony may be introduced when the judge finds that
they are more probative than prejudicial.
KRE 404(b)
Foley v. Commonwealth,
p. 886-887 - Evidence that the defendant threatened or otherwise influenced
witnesses in an attempt to suppress testimony may be introduced where made
by or on behalf of the defendant. The defendant denied attempting to orchestrate
testimony and the Commonwealth sought to introduce a letter in which the
scheme was shown.
Bowling v. Commonwealth,
p. 300-301 - Other instances showing that the defendant robbed the lone
operator of a gas station are admissible because identity is an essential
element of every prosecution and other acts evidence may be used to prove
identity even if they tend to prove commission of another crime. An apparent
important factor in this case was the limiting instruction given by the
judge.
Robey v. Commonwealth,
p. 617-618 - Other acts evidence is admissible only if probative of an
issue independent of character or criminal disposition and only if the
probative value outweighs unfair prejudice with respect to character.
Tabor v. Commonwealth,
p. 572 - A juror's comment amounted to other crimes evidence which is not
permitted to prove character.
Parker v. Commonwealth,
p. 213 - Uncharged acts may be admitted to show the defendant's motive,
intent or absence of mistake. In this case, the defendant claimed that
there was no way to link prior injuries of a child to him. The Court held
that the link need not be established by direct evidence, but may be made
by inference.
KRE 404(c)
Bowling v. Commonwealth,
p. 300 - The purpose of the rule is to provide notice adequate for a motion
in limine. The defendant had actual notice in this case from discovery,
evidenced by his failure to list lack of notice as a ground for exclusion
and his filing of a motion in limine.
KRE 411
Wallace v. Leedhanachoke,
p. 625 - Party wished to show that doctor's expert in malpractice action
was insured by the same company as the doctor to show the bias of the expert.
Court held that the judge must balance probative value against the well
established rule prohibiting introduction of evidence about insurance.
KRE 501
Leanhart v. Humana
Inc., p. 820 - KRS 311.377(2), the peer review privilege, does
not necessarily prohibit discovery in medical negligence cases.
KRE 503
Lovell v. Winchester,
J., p. 467 - In a civil suit, persons who had consulted a lawyer
about a case exercised this privilege when the lawyer instead represented
the adverse party. The key is whether confidential information is disclosed
to the attorney with a view to obtaining his professional services based
on a reasonable belief that the lawyer is undertaking representation.
KRE 601(a)
Moss v. Commonwealth,
p. 582 - The prosecutor at trial is not necessarily an incompetent witness.
The decision as to whether he will testify is largely based on RPC 3.7(a)(1).
Here he just testified as a link in the chain of custody which was permissible.
KRE 601(b)
Bart v. Commonwealth,
p. 579 - Every person is presumed competent to testify, even infants. The
Court held that the trial judge is in a unique position to determine if
the witness is qualified. Although due process may in some cases require
expert testimony on witnesses, in general, the Court will leave the question
of competency to the judge.
KRE 609
Tabor v. Commonwealth,
p. 572 - Citing Duvall v. Commonwealth, 548 S.W.2d 832 (Ky. 1977),
the Court held that a party may not impeach with a conviction if the judgment
is not final, which includes a case in which the appeal is not final.
KRE 611(a)
Ray v. Stone,
p. 224 - A criminal conviction may be used to collaterally estop any contrary
claim by the estopped party in a civil case. The Court does not cite a
rule for this principle, but KRE 611(a)(1) and (2) deal with this subject
matter.
Collins v. Commonwealth,
p. 573 - A missing evidence instruction is to be given when evidence is
negligently lost. See Monsanto Co. v. Reed, 950 S.W.2d 811 (Ky.
1997).
KRE 611(b)
Foley v. Commonwealth,
p. 887-888 - Ken-tucky follows the "wide open" cross-examination rule which
allows a party to cross- examine a witness on any subject including credibility.
Wallace v. Leedhanachoke,
p. 625 - A party may cross-examine a witness on any issue relevant to the
case, subject to the control of the judge.
KRE 612
Brock v. Commonwealth,
p. 29-30 - Use of an audiotape to refresh memory is permitted but must
be done out of the presence of the jury. If the memory is refreshed, there
is no need to admit the tape. If not, the tape should be admitted but the
jury may not use it during deliberations.
KRE 614(c)
Commonwealth v. Collins,
p. 817 - Failure to require written juror questions was a technical violation
of this rule but in the circumstances harmless.
KRE 615
Commonwealth v. Collins,
p. 817 - The purpose of this rule is to elicit truth from the witness.
When the rule is violated, the judge must conduct a hearing to determine
if there is prejudice to a party, what the witness heard, and what the
proposed testimony would be. The judge's determination is subject to review
for abuse of discretion.
KRE 701
Hubbard v. Commonwealth,
p. 383 - The victim of a robbery is competent to testify as to the injury
resulting from the crime.
Bowling v. Commonwealth,
p. 305 - A lay witness may testify to "collective facts" like a "strange"
or "intense" look.
Brock v. Commonwealth,
p. 28 - The Court did not reach the question of whether a party had laid
the minimum foundation for a witness to describe the defendant's state
of mind. This is another collective facts case.
Moss v. Commonwealth,
p. 582 - An attorney may not ask a witness if any other witness in the
case is lying.
Commonwealth v. Rhodes,
p. 623 - A police officer qualified by training and experience may state
an opinion as to intoxication.
KRE 702
McKinney v. Venters,
p. 241-242 - After the party has caused the DNA test to be made, the judge
will determine, still on a case by case basis, the admissibility of the
evidence.
Kesler v. Shehan,
p. 256 - In an undue influence will contest, the attorney/expert testified
about the duties of a drafting attorney which did not invade the province
of the jury.
Commonwealth v. Wirth,
p. 83 - The breathalyzer test is considered sufficiently reliable to be
admitted without a showing of a greater degree of certainty than other
expert evidence. The method of "relation back" testimony by an expert was
discussed in this case.
Newkirk v. Commonwealth,
p. 695 - The change from the Frye to the Daubert standard is not
sufficient to permit testimony about child sex abuse accommodation syndrome.
The Court also observed that more courts permit experts to testify about
probabilities, classes, syndromes and traits the more the jury is removed
from its historic function of judging the credibility of evidence. The
Court stated that it would trust the jury.
Bowling v. Commonwealth,
p. 305 - A police officer's testimony about the fit of a gun to a particular
holster was objected to on the ground that the jury could observe this
for itself. The Court rejected the claim because the rule permits evidence
that "aids" the jury, even where there is some reservation as to its helpfulness.
Foley v. Commonwealth,
p. 889 - The judge has discretion as to expert witness status. The proposed
testimony must be relevant to the issue at hand.
Robey v. Commonwealth,
p. 620 - DNA evidence is admitted on a case by case basis. It was unnecessary
in this case because the defendant admitted intercourse.
Cormney v. Commonwealth,
p. 634 Expert testimony as to who was driving the car in a vehicular homicide
case assisted the jury. However, testimony as to the DUI presumption of
intoxication was erroneous.
Commonwealth v. Petrey,
p. 419 - The Court stated that it was still reluctant to accept DNA as
admissible in all cases. It demands a case by case determination.
Commonwealth v. Rhodes,
p. 623 - Preliminary breath test results are admissible if the instructions
for them have been followed. The Court did not decide the question of whether
the HGN test is scientific or not.
Collins v. Commonwealth,
p. 574-575 - A physician's testimony about retention of the hymen was helpful
to the jury in a child sex abuse case. It was based on a compilation of
statistics and observations therefore a qualifying hearing under Daubert/Mitchell
was not required.
Bart v. Commonwealth,
p. 578-579 - Due process may in some cases require examination of a child
witness by an independent expert to determine competency to testify. But
in general, the Court prefers to leave the matter up to the trial judge.
Luttrell v. Commonwealth,
p. 218 - In the context of this case, the judge's statement to the witness
that "you may render an expert opinion" was harmless. But the Court cautions
that all rulings on expert status should be out of the hearing of the jury
and that there should never be a declaration to the jury that the witness
is an expert.
KRE 703
Brown v. Commonwealth,
p. 247 - An expert may testify as to what a third person said as long as
this type of information is customarily relied on in the particular practice
or profession of the witness.
KRE 704
Kesler v. Shehan,
p. 256 - In an undue influence will contest, the attorney/expert's testimony
did not address any matter that the instructions called for the jury to
decide and therefore did not touch on the ultimate issue.
Newkirk v. Commonwealth,
p. 694 - The rejection of proposed KRE 704 was an unambiguous act, and,
as Lawson concluded, the ultimate fact prohibition is still important in
Kentucky.
Cormney v. Commonwealth,
p. 633 - The testimony of an accident reconstruction witness that the defendant
was the driver was held not addressed to the ultimate issue in the case
which the Court identified as whether the driver was acting wantonly. This
decision is wrong. Identity is an issue in every criminal case and the
witness gave an opinion on who was driving the car, an essential element
of second degree manslaughter.
KRE 705
Collins v. Commonwealth,
p. 574 - An expert may give an opinion without disclosure of underlying
data relied upon. Therefore, the failure of the Commonwealth to provide
in pretrial discovery copies of the studies relied upon was not a violation
of RCr 7.24(1)(b)
KRE 801A(a)(1)
Brock v. Commonwealth,
p. 27 - A party may use qualifying statements both to contradict and as
substantive evidence. A prior statement qualifies when the witness denies
making it or claims inability to remember it.
Newkirk v. Commonwealth,
p. 696 - Child could not recall specific details during trial testimony
and therefore the judge did not abuse discretion by allowing a police officer
and a physician to testify as to these details.
KRE 801A(a)(3)
Owens v. Commonwealth,
p. 839 - The Commonwealth is entitled, after a witness says that he made
an eye witness identification, to corroborate the fact that the out of
court identification was made.
KRE 801A(b)
McQueen v. Commonwealth,
p. 417 - This rule expressly exempts only statements offered against the
party from exclusion by KRE 802.
KRE 801A(b)(5)
Commonwealth v. Kina,
p. 809 - This case discusses pre-rules conspiracy and holds that the determination
of the existence of a conspiracy will not be reversed except upon showing
of abuse of discretion. The dissent says that the rule has not yet been
construed.
KRE 802
Collins v. Commonwealth,
p. 575 - In this case the Court held that the social worker's testimony
about a child's explanation for initial denial of sexual abuse was not
hearsay. The Court noted that the social worker did not say whether she
believed the child's explanation. The Court is wrong on this point. Unless
the testimony was expressly limited to corroboration that the explanation
was made, in which case the substance was unnecessary, the jury would have
used this as evidence of the truthfulness of this explanation.
KRE 803(2)
Robey v. Commonwealth,
p. 618-619 - The Court held that the rule was satisfied when the declarant
was under the stress of nervous excitement, reacting to recent event with
no opportunity to reflect upon or fabricate a statement and the statement
was trustworthy because the stress of the nervous excitement stilled reflective
facilities so that the statement was spontaneous and a sincere response
to the event.
KRE 803(5)
Brock v. Commonwealth,
p. 30 - The recorded recollection exception does not require a written
memorandum prepared by the witness particularly when it is used only to
refresh recollection. This opinion is confusing. The rule expressly requires
the making or adoption of the record "when the matter is fresh". The Court
is really talking about refreshment, KRE 612, rather than exemption from
the hearsay rule.
KRE 804(a)
Brock v. Commonwealth,
p. 31 - In this case the defendant wanted to use a statement of the deceased
to his mother which had been recorded on audiotape.
KRE 804(b)(3)
Brock v. Commonwealth,
p. 31 - The decedent's statement that he would kill the defendant constituted
a statement against the decedent's penal interest when made to his mother
before the confrontation which resulted in the defendant shooting the deceased.
KRE 805
Brock v. Commonwealth,
p. 31 - This case presents an example of how the rule works. The deceased's
statement to his mother was recorded on audiotape and introduced through
the person engaged in the phone conversation with the deceased's mother.
KRE 901
Commonwealth v. Wirth,
p. 82 - To qualify the breathalyzer, calibration testimony is usually provided
by technicians but the statutes and regulations permit use of public or
business records to do so.
Brock v. Commonwealth,
p. 29-30 - To authenticate audiotape, there must be evidence sufficient
to support a finding that the matter in question is what the proponent
says it is. The witness may identify the voices and the accuracy of the
tape. Without saying so expressly, this case acknowledges that KRE 901
abrogates the former involved foundation for audiotape.
Moss v. Commonwealth,
p. 582 - The Assistant Commonwealth's Attorney may appear as a witness
to establish the chain of custody.
Parker v. Commonwealth,
p. 213 - Photographs may be authenticated by anyone who can say that they
actually depict what they are supposed to show.
Bart v. Commonwealth, 951
S.W.2d 576 (Ky. 1997)
Bowling v. Commonwealth,
942 S.W.2d 293 (Ky. 1997)
Brock v. Commonwealth,
947 S.W.2d 24 (Ky. 1997)
Brown v. Commonwealth,
934 S.W.2d 242 (Ky. 1996)
Carman v. Dunaway Timber,
949 S.W.2d 569 (Ky. 1997)
Collins v. Commonwealth,
951 S.W.2d 569 (Ky. 1997)
Commonwealth v. Collins,
933 S.W.2d 811 (Ky. 1996)
Commonwealth v. King,
950 S.W.2d 807 (Ky. 1997)
Commonwealth v. Petrey,
945 S.W.2d 417 (Ky. 1997)
Commonwealth v. Rhodes,
949 S.W.2d 621 (Ky.App. 1996)
Commonwealth v. Wirth,
936 S.W.2d 78 (Ky. 1996)
Cormney v. Commonwealth,
943 S.W.2d 629 (Ky.App. 1996)
Foley v. Commonwealth,
942 S.W.2d 876 (Ky. 1996)
Hubbard v. Commonwealth,
932 S.W.2d 381 (Ky.App. 1996)
Kesler v. Shehan, 934
S.W.2d 254 (Ky. 1996)
Leanhart v. Humana, Inc.,
933 S.W.2d 820 (Ky. 1996)
Lovell v. Winchester,
941 S.W.2d 466 (Ky. 1997)
Luttrell v. Commonwealth,
952 S.W.2d 216 (Ky. 1997)
McKinney v. Venters,
934 S.W.2d 241 (Ky. 1996)
McQueen v. Commonwealth,
948 S.W.2d 415 (Ky. 1997)
Monsanto Co. v. Reed,
950 S.W.2d 811 (Ky. 1997)
Moss v. Commonwealth,
949 S.W.2d 579 (Ky. 1997)
Newkirk v. Commonwealth,
937 S.W.2d 690 (Ky. 1996)
Owens v. Commonwealth,
950 S.W.2d 837 (Ky. 1997)
Parker v. Commonwealth,
952 S.W.2d 209 (Ky. 1997)
Ray v. Stone, 952 S.W.2d
220 (Ky.App. 1997)
Robey v. Commonwealth,
943 S.W.2d 616 (Ky. 1997)
Tabor v. Commonwealth,
948 S.W.2d 569 (Ky.App. 1997)
Toyota Motor Mfg. v.
Epperson, 945 S.W.2d 413 (Ky. 1996)
Wallace v. Leedhanachoke,
949 S.W.2d 624 (Ky.App. 1996)
Wolfenbarger v. Commonwealth,
936 S.W.2d 770 (Ky.App. 1996)
David Niehaus
Deputy Appellate Defender
Jefferson District Public
Defender's Office
200 Civic Plaza
Louisville, Kentucky 40202
Tel: (502) 574-3800; Fax:
(502) 574-4052
• • • • • • • •
Return
to Table of Contents