The Advocate, Vol. 21, No. 2 (March
1999)
Practice Tips
DPA’s Appellate
Branch
Collected by Susan Balliet, Assistant Public
Advocate
- Ask for 12 peremptories in co-defendant cases involving alternate
jurors.
An issue currently before the Kentucky
Supreme Court concerns the correct number of peremptory challenges where
alternate jurors are seated and there are co-defendants. Where there are two
co-defendants and an alternate juror, RCr 9.40 entitles each defendant to 12
peremptories as opposed to the 11 that many courts appear to be giving. The
Supreme Court appears to be taking this issue very seriously, so you might want
to ask for 12 in all pending.
Richard Hoffman, Assistant Public Advocate
rhoffman@mail.pa.state.ky.us
- Object when the prosecutor asks your witness to call another witness a
liar.
Under Moss v. Commonwealth, 949 S.W.2d
579, 583 (Ky. 1997) the commonwealth is precluded from forcing a witness to
characterize another witness as a liar. Example: Mr. X, are you saying that ...
is true? Then Ms. Y must be a liar.
Richard Hoffman, Assistant Public Advocate
rhoffman@mail.pa.state.ky.us
- In stalking cases – stipulate prior bad acts or ask for bifurcated
proceeding.
In defending under the new stalking
statute, KRS 508.140, defense counsel should be asking for bifurcated trials, or
–when prior offenses are not contested-- offering to stipulate to prior
offenses. Under KRS 508.140(b) one of the elements of stalking can be the fact
of a prior emergency protective order, prior criminal complaint, or prior
conviction arising from against the same victim. In Old Chief v. United
States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) the Court ruled
that when there is a "status element" which requires proof of a prior conviction
and the defendant offers to stipulate to the prior conviction, then neither the
name of the offense nor the prior record of the offense may come in during the
trial because its prejudicial effect outweighs its probative value. Old
Chief, 117 S.Ct. at 646.
A stipulation, of course, would only be correct in a case where
the defendant does not contest the validity or applicability of the prior
conviction. By implication, under Old Chief, where a defendant contests
the validity of prior convictions or other bad acts, at a minimum there should
be a bifurcated proceeding. It is unclear whether the Court intended a per
se rule to apply, or whether a harmless error analysis should be applied.
Old Chief, 519 U.S. 172, at n. 11. To be safe, defense counsel should be
sure to argue the introduction of prior convictions, etc. will materially affect
the jury’s verdict. Counsel should also preserve the underlying federal question
by arguing that allowing bad acts evidence and refusing to exclude evidence of a
prior EPO or other convictions, violates the right to due process under the
5th and 14th Amendments and Sections 2 and 11 of the
Kentucky Constitution.
Susan Balliet, Assistant Public Advocate
sballiet@mail.pa.state.ky.us
- New Designation of Record Rule
In your
designation of record, please include a calendar of all dates and times of all
pretrial hearings, and a brief description of what occurred at those
hearings. When dates are omitted, you can be sure that the record on
appeal will be incomplete.
Julie Namkin, Assistant Public Advocate
jnamkin@mail.pa.state.ky.us
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