The Advocate, Vol. 21, No. 2 (March 1999)

Practice Tips
DPA’s Appellate Branch
Collected by Susan Balliet, Assistant Public Advocate
  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

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

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

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

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