The Advocate
Volume 22, No. 5, 
September 2000
Article I: General Provisions

Rule 101 Scope.

These rules govern proceedings in the courts of the Commonwealth of Kentucky, to the extent and with the exceptions stated in KRE 1101. The rules should be cited as "KRE," followed by the rule number to which the citation relates.

HIST:  Enacted 1990 Ky. Acts ch. 88, sec. 1; renumbered (7/1/92) pursuant to 1992 Ky. Acts ch. 324, sec. 34.

COMMENTARY

PREMISE/PURPOSE:

Two mundane purposes are obvious: (a) to limit the rules proceedings in the Court of Justice; and, (b) to provide a uniform method of citation. The language is similar to language found in CR 1 and RCr 1.02.

Recently the Kentucky Supreme Court and the Court of Appeals have rendered opinions which, read together, amount to holdings that the Kentucky Rules of Evidence do not apply at suppression hearings. White v. Commonwealth, Ky., 5 S.W.3d 140, 146 (1999); Farmer v. Commonwealth, Ky.App., 6 S.W.3d 140, 142 (1999). The statement in White is dicta but says that had the party moved to exclude testimony on the ground of a constitutional violation, the matter would have been settled at a suppression hearing at which the rules of evidence would not have applied.

Rule 102 Purpose and construction.

These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

HIST:  Enacted 1990 Ky. Acts ch. 88, sec. 2; renumbered (7/1/92) pursuant to 1992 Ky. Acts ch. 324, sec. 34.

COMMENTARY

PREMISE/PURPOSE: This rule is a general aspirational statement of the drafters as well as a more conventional directive to interpret the rules liberally to achieve the stated goals. Implicit in this rule is a recognition that the rules only govern the most common evidentiary questions that arise during a proceeding in the Court of Justice and that new circumstances (e.g., novel scientific information) may not be covered explicitly by the text. This statement, together with others found in KRE 106, 403, and 611(a), provides some guidance when unanticipated questions arise.

(a) Section Two of the Kentucky Constitution prohibits arbitrary conduct by any agent or agency of government, including decisions on evidence questions by trial judges. Although it is never mentioned in the rules, Section Two is the fundamental principle for interpretation of rule language. Kroger Company v. Kentucky Milk Marketing Comm., Ky., 691 S.W.2d 893, 899 (1985).

(b) The language of rule 102, together with that of 403 and 611, gives the judge substantial authority to admit or exclude evidence on non-legal or non-theoretical grounds. The proponent of evidence may well have to show more than relevance or qualification under a hearsay exception. The judge is charged by these "rules of economy" to decide whether the probative value of evidence is worth the cost in terms of time, expense, or jury confusion. However, these considerations cannot deprive a party of the right to present evidence that is substantial.

(c) Kentucky is a plain language state which means that this rule should not be used to sidle past the obvious meaning of rule language. KRE 102 should apply only in cases where the rules do not provide a clear answer.

(d) "Growth and development of the law of evidence" is not an invitation to trial level judges to make up law. Because the rules are designed for the Court of Justice, the growth and development of evidence law is to come primarily from the Supreme Court through appellate opinions on the meaning and applicability of rule language and through the rules creation and amendment machinery established by KRE 1102 and 1103.

(e) But the rules are not to be a straight jacket. A criminal defendant has a Sixth Amendment right to present evidence and mount a complete defense. The U.S. Supreme Court has recognized a federal due process right for defendants to present "reliable" evidence even when current state law does not allow it. Chambers v. Mississippi, 410 U.S. 284 (1973).

(f) Roberts v. Commonwealth, Ky., 896 S.W.2d 4 (1995) noted that in the absence of any Kentucky opinions construing KRE 410, the Court was "free to look to federal authorities for interpretation of the federal counterparts."

(g) Recently, Lawson has written about the precedent value of evidence cases decided before July, 1992. Interpretation of the Kentucky Rules of Evidence – What happened to he Common Law? 87 Kentucky Law Journal 517-582 (1999). While Section 233 of the Constitution says that common law prevails until altered or repealed by the General Assembly, NREP Cabinet v. Neace, Ky., 14 S.W.3d 15, 19 (2000), the General Assembly did enact the Rules of Evidence in 1992. KRE 101 says that the rules govern proceedings in the courts. Therefore, any subject covered by a rule is governed by the rule, not by cases discussing prior common law. In general, pre-1992 cases are persuasive authority, not binding.

(h) In Stringer v. Commonwealth, Ky., 956 S.W.2d 883 (1997), the court dealt with a subject not covered by the rules. The court deemed the matter within its common law authority to overrule cases. The court overruled prior opinions on the "ultimate issue" question in expert testimony cases in light of KRE 401 and KRE 702.

(i) Keep in mind that the issue of admissibility of evidence is procedural. Commonwealth v. Alexander, Ky., 5 S.W.3d 104, 106 (1999). Therefore, court opinions construing evidence questions may be applied retroactively as long as the rule announced does not lessen the Commonwealth's burden of proof.

(j) Alexander also confirms the policy of the Supreme Court that the General Assembly cannot by statute declare evidence admissible.


Rule 103 Rulings on evidence.

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, and upon request of the court stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. In case the ruling is one excluding evidence, upon request of the examining attorney, the witness may make a specific offer of his answer to the question.

 (b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d) Motions in limine. A party may move the court for a ruling in advance of trial on the admission or exclusion of evidence. The court may rule on such a motion in advance of trial or may defer a decision on admissibility until the evidence is offered at trial. A motion in limine resolved by order of record is sufficient to preserve error for appellate review. Nothing in this rule precludes the court from reconsidering at trial any ruling made on a motion in limine.

(e) Palpable error. A palpable error in applying the Kentucky Rules of Evidence which affects the substantial rights of a party may be considered by a trial court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.

HIST:  Enacted 1990 Ky. Acts ch. 88, sec. 3; amended 1992 Ky. Acts ch. 324, sec. 1; renumbered (7/1/92) pursuant to 1992 Ky. Acts ch. 324, sec. 34.

COMMENTARY

PREMISE/PURPOSE:

To advise trial level courts hearing new trial or RCr 11.42 motions and all courts on appeal of the conditions under which error may be found. The language deals with the effect of an erroneous "ruling" which implies that the judge had an occasion to rule on a question of admission or exclusion. Subsection (e) deals with palpable error. Neither rule is designed to reach errors that do not affect a "substantial right" of the complaining party. Green River Electric Co. v. Nantz, Ky.App. , 894 S.W.2d 643, 645 (1995).

103(a)

(a) At minimum to preserve an objection an attorney must say, "I object." If the judge requests an explanation, the attorney must provide it. Ostensibly, nothing else is required to preserve the issue for appellate review. However, in practice, a motion to strike, a request for admonition or a motion for mistrial will be required to obtain reversal on appeal. Lewis v. Grange Mutual, Ky.App., 11 S.W.3d 591, 593 (2000); Johnson v. Commonwealth, Ky., 12 S.W.3d. 258, 261 (1999).

(b) If the objected-to evidence is admissible only for a limited purpose, e.g., other bad acts to show identity, the attorney should request a limiting instruction telling the jury that the evidence may not be used to conclude that the other act is evidence of propensity and that the defendant is guilty because of this propensity. See KRE 105.

(c) If evidence is excluded, the attorney must demand an avowal in testimony format with the witness making specific statements. This can be narrative in form, although questions and answers are the more usual practice. Otherwise, the reviewing court will not know what was excluded and why it was important for the jury to hear it. Partin v. Commonwealth, Ky., 918 S.W.2d 219 (1996); Commonwealth v. Ferrell, Ky., 17 S.W.3d, 520, 523 (2000).

(d) Failure to object at all is almost always fatal to success on appeal or review. The Supreme Court is saying, in opinion after opinion, that it is not going to bother with appellate issues in which the question was not raised at the trial level, e.g., Roberson v. Commonwealth, Ky., 913 S.W.2d 310 (1994); Justice v. Commonwealth, Ky., 987 S.W.3d 306, 316 (1998). The federal courts paraphrase the gospel saying about a camel passing through the eye of a needle when referring to the chances of success on a preserved evidence issue. The reader may draw her own conclusions about the chances of success for an unpreserved issue.

(e) No objection is required when a judge or juror testifies at trial. [KRE 605; 606]. Late objections are allowed when the judge calls a witness [KRE 614(d)] or a juror asks a question and the lawyer cannot make an objection before it is answered. [KRE 614(d)]. If a judge takes judicial notice before an objection can be made, KRE 201(e) allows a belated objection.

(f) The literal language of KRE 103(a) does not require a contemporaneous objection. This certainly may be implied, and, because KRE 103(a) requires a timely objection and does not supersede RCr 9.22, the contemporaneous objection rule obviously still applies. Davis v. Commonwealth, Ky., 967 S.W.2d 574, 578 (1998).

(g) Occasionally the appellate court will address an issue on appeal because it is likely to recur on a retrial, e.g., Eldred v. Commonwealth, Ky., 906 S.W.2d 694, 703 (1995). The court does this to preclude error at a retrial that is going to take place for other reasons.

(h) A nasty trap is described in Frank v. Commonwealth, Ky., 907 S.W.2d 771 (1995) in which the court ruled that a defendant's objection to the admission of evidence is waived by cross-examination on the objected-to subject matter. This is an old principle that seems to apply only when the court does not want to reverse. It reflects the "all or nothing" approach of the ancient common law which required theoretical consistency to the point that it defied common sense or logic. Theoretically, a party objecting to evidence should preserve the issue and wait for vindication on appeal. But this is a waste of time, money and court resources which KRE 102 counsels against. This is also contrary to the approach court took in O'Bryan v. Hedgespeth, Ky., 892 S.W.2d 571 (1995) [See Comment 103(d)] which took a pragmatic view of the in limine rule and rejected a claim that introduction of evidence voided a pretrial in limine ruling. Certainly, at some point cross-examination on a subject will amount to waiver. But a party should not be put in the position of having to ignore damaging evidence at the cost of waiving the right to later relief from the appellate courts.

(i) On appeal, the standard of review is abuse of discretion. Partin v. Commonwealth, Ky., 918 S.W.2d 219 (1996); Estep v. Commonwealth, Ky., 957 S.W.2d 191, 194 (1997); Murphy v. Montgomery Elevator Co., Ky.App., 957 S.W.2d, 297, 298 (1997); Skimmerhorn v. Commonwealth, Ky.App., 998 S.W.2d 771, 775 (1998). For a denial of a constitutional right like confrontation, the beneficiary of the error must prove it harmless beyond reasonable doubt. Renfro v. Commonwealth, Ky., 893 S.W.2d 795, 797 (1995).

(j) In Commonwealth v. English, Ky., 993 S.W.2d 941, 945 (1999), the court defined "abuse of discretion" as an arbitrary, unreasonable or unfair decision or one unsupported by "sound legal principles."
 
103(b)

PREMISE/PURPOSE:

This rule expresses the authority of the judge to make the record reflect what actually happened. The rule has nothing to do with the attorney unless the judge’s comments are objectionable. This rule does not authorize an "offer of proof" by the attorney as a substitute for the testimony of the avowal witness, although, of course, if a judge will not permit avowal and will permit only an offer of proof this necessarily will suffice. [Sholler v. Commonwealth, Ky., 969 S.W.2d 706, 710 (1998)] Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 31 (1998); Commonwealth v. Ferrell, Ky., 17 S.W.2d 520 (2000).

103(c)

PREMISE/PURPOSE:

Along with KRE 104(c) this rule exists to insulate jurors from hearing evidence of contested admissibility until the judge has decided whether and under what limiting instructions the jury can hear it. It is based on the sensible belief that it is easier to keep a jury from hearing improper information than it is to come up with an admonition or an instruction to "unring the bell" or to try the case again after mistrial. Again, the policy of economy and fairness stated in KRE 102, 403, and 611 underlies this rule.

 
(a) Use of the phrase "proceeding shall be conducted" places primary responsibility for insulating jurors from improper information on the judge, the person responsible for conducting the proceedings. [KRE 611]. So called "side bars," avowals or witness voir dires obviously should be conducted at the bench in a way that prevents jurors from overhearing. Whether this requires whispering or recess of the jury is left up to the judge.

(b) Attorneys have an ethical duty to assist the judge under SCR 3.130. RPC 3.1 generally prohibits raising frivolous issues while RPC 3.2 requires reasonable efforts to expedite the litigation. RPC 3.4(e) prevents a lawyer from alluding to any matter not reasonably relevant or believed to be supported by admissible evidence. More specifically, RPC 3.4(c) prohibits disobedience to court rules except through open and clear refusal while RPC 3.5(a) prohibits any attempt to influence a juror through means prohibited by law.

(c) This rule presumes the participation of attorneys who know their ethical duties and do not engage in cheap tricks. The judge has a legal duty under KRE 611(a) and an ethical duty under SCR 4.300(3)(A)(3) and (4) to hear arguments on the admissibility of evidence. Because admissibility is a legal question, the jurors do not need to know about it.
 

103(d)

PREMISE/PURPOSE:

Another economical feature of the rules is the provision for pretrial determination of admissibility questions. Kentucky's rule differs from others because under most circumstances the pretrial ruling is binding throughout trial and preserves the issue for appeal without the necessity of a contemporaneous objection. Use of the in limine motion lowers the danger of inadvertent violation of KRE 103(c) or 104(c) and, because the parties know what will and will not come in, allows a more definite commitment to trial strategy before the trial begins.

(a) The procedural requirements must be followed. If the motion does not result in an "order of record" the issue is not preserved and the objecting party must object when the problematic evidence is introduced at trial. Excluded evidence requires an avowal that complies with KRE 103(a)(2). An "order of record" is a written order signed by the judge and entered by the clerk. [CR 58(1); RCR 13.04].

(b) The rule can be used to try to exclude evidence of prior acts or convictions [KRE 404(b); 609], to test the foundation under KRE 804, to question the qualifications of an expert [KRE 702], to examine authenticity [KRE 901] or to deal with best evidence or summary questions. [KRE 1004; 1006].

(c) An unsuccessful pretrial motion for severance under RCr 9.16 must be renewed when the prejudice of joint trial becomes evident. Because this motion is often closely associated with questions of admissibility of evidence as to one or more co-defendants, it is probably well to renew the evidence objection at the same time.

(d) In Tucker v. Commonwealth, Ky., 916 S.W.2d 181, 183 (1996), the Supreme Court stated its policy that "an objection made prior to trial will not be treated in the Appellate Court as raising any question for review which is not strictly within the scope of the objection made, both as to the matter objected to and as to the grounds of the objection. It must appear that the question was fairly brought to the attention of the trial court."

(e) However, in O'Bryan v. Hedgespeth, Ky., 892 S.W.2d 571, 574 (1995) the court held that if evidence is excluded by a pretrial in limine order, a party may still go forward with evidence to avoid being put in a bad light before the jury. The court held that the issue would be preserved under those circumstances.
 
 
103(e)

PREMISE/PURPOSE:

The function of all appellate courts is to review the record generated in the lower court. [Kentucky Constitution, Section 115]. The Supreme Court has an additional administrative authority [Section 110(2)] which authorizes it to take corrective action to assure the orderly and effective administration of justice. KRE 102 posits discovery of truth and just disposition of the case as the goals of the evidence rules. Reviewing courts need a way to deal with error of record that clearly affected the case in a way that cannot be tolerated. KRE 103(e) is the evidence rule that provides the means to do so.

(a) In Perdue v. Commonwealth, Ky., 916 S.W.2d 148, 157 (1995), the Supreme Court observed that where there was no objection to the introduction of evidence or where the objection was insufficient, "to require exclusion without an objection, we would have to conclude as a matter of law that there were no facts or circumstances which would have justified admission of the evidence."

(b) Tucker v. Commonwealth, Ky., 916 S.W.2d 181, 183 (1996) held that if the record shows that counsel was aware of an issue and failed to request appropriate relief on a timely basis, the matter would not be considered on appeal as plain error.

(c) A different rule obtains in death penalty cases. The Supreme Court uses a three part analysis which asks whether error was committed, whether there was a reasonable justification for failure to object, including trial tactical reasons, and, regardless of justification for failure to object, whether the error was so prejudicial that in its absence the defendant might not have been found guilty or sentenced to death. Perdue, 916 S.W.2d 148, 154 (1995).


Rule 104 Preliminary questions.

(a)  Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b) of this rule. In making its determination it is not bound by the rules of evidence except those with respect to privileges.

(b)  Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

(c)  Hearing of jury. Hearings on the admissibility of confessions or the fruits of searches conducted under color of law shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.

(d)  Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.

(e) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility, including evidence of bias, interest, or prejudice.

HIST:  Enacted 1990 Ky. Acts ch. 88, sec. 4; amended 1992 Ky. Acts ch. 324, sec. 2; renumbered (7/1/92) pursuant to 1992 Ky. Acts ch. 324, sec. 34.

COMMENTARY

PREMISE/PURPOSE:

This subsection identifies the judge as the person who will make the determination as to admission or exclusion of evidence in any proceeding. Because the decision to admit is not dispositive of the weight or credibility that the jurors might give to the evidence, the judge is not bound by the rules of evidence except as to privileged information. Turner v. Commonwealth, Ky., 5 S.W.3d 119, 123 (1999); White v. Commonwealth, Ky., 5 S.W.3d 140, 142 (1999). Although the judge is not required to follow the rules of evidence, Section 2 of the Kentucky Constitution requires at minimum that the evidence be reliable enough that a rational person could make a decision based upon it.

104(a)

(a) The judge's exemption from the rules of evidence is also restated in KRE 1101(d)(1). (b) A judge decides admissibility or qualifications of a witness under a preponderance standard. [Commentary, p.7]. Relying on Bourjailly v. U.S., 483 U.S. 171 (1987), the drafters stated that the language was susceptible to a construction requiring preponderance. Lawson's Handbook maintains that preponderance is the right standard, i.e., that the item more likely than not is what it is claimed to be, that the witness more likely than not is qualified to express an opinion.

(c) The determination of consent to search in a suppression hearing is a preliminary question of fact to be decided by the judge. Talbott v. Commonwealth, Ky., 968 S.W.2d 76, 82 (1998).

(d) The determination of reliability in a Daubert hearing is a preliminary question of fact not binding on the jury. Johnson v. Commonwealth, Ky., 12 S.W.2d 258, 262 (1999).
 
104(b)

PREMISE/PURPOSE:

The procedural aspect of this rule works together with KRE 611(a) to allow the judge flexibility in the presentation of evidence where witness schedules prevent a logical sequence that would show the relevance of particular testimony or evidence. Essentially, the judge allows the evidence on the proponent's promise that all will become clear later. A more substantive application arises in instances where jurors must find the existence of one fact before another fact is relevant. An often-cited example of this application is the situation in which the jury must believe that property was stolen before the second inference, commission of a prior bad act, theft, occurred. Huddleston v. U.S., 485 U.S. 681, 690 (1988). The judge decides whether jurors reasonably could believe the first fact either upon proof introduced by the proponent or the promise that such proof is forthcoming.

(a) Failure to "connect up" the evidence is grounds for an instruction to disregard the testimony presented subject to fulfillment of the condition, or perhaps even a mistrial. However, KRE 103(a)(1) places the burden of making a motion to strike on the opponent of the evidence. Unless the opponent acts, the jury may consider such evidence for any purpose.

(b) KRE 104(b) issues are particularly susceptible to KRE 403 and 611(a)(2) objections for needless consumption of time and potential to confuse or mislead the jury. The judge may allow disjointed presentation of evidence but is not required to do so to suit the convenience of the parties or witnesses.
 
104(c)

PREMISE/PURPOSE:

While KRE 103(c) covers all aspects of a jury trial, KRE 104(c) deals specifically with arguments and hearings about the admission or exclusion of evidence. The same ethical considerations govern both situations. The decision to excuse the jury while arguments are going on is left to the judge except in cases involving suppression of confessions or the products of searches and seizures or in which the defendant testifies and asks for exclusion.

(a) Pretrial motions under RCr 9.78 and KRE 103(d) can eliminate many of the occasions in which this rule might be invoked.

(b) It is important to realize that this rule applies to anything from a full-blown suppression hearing to a routine hearsay objection. The rule says "out of the hearing of the jury," not out of its presence. In theory, therefore, except for the three required instances, a judge can hear argument and evidence about the admissibility of evidence in open court with the jurors observing and wondering what the arguing is all about. In practice, most judges require argument at the bench about any preliminary issue.

(c) This rule allows the judge to hear evidence of the qualifications of an expert witness in the presence of the jury or in a voir dire hearing from which the jury is excluded. If the witness is a state police laboratory chemist with whose credentials the judge is familiar, there is probably not much danger of jury contamination because the witness is quite likely to be qualified. Conversely, a psychologist talking about a little known theory that explains an obscure point of the case should not be heard by the jury until both the witness and the theory are deemed admissible.
 
104(d)

PREMISE/PURPOSE:

This rule permits a defendant to testify on the limited issue of admissibility of evidence without being subjected to cross-examination on other subjects which is authorized by KRE 611(b). It does not govern later use of that testimony, but by limiting the subject matter of the testimony to the facts bearing on admissibility of evidence, the rule leaves to the defendant how much exposure to later use of his statements he wishes to face. Later use of the statement for substantive purposes is prevented by considerations of relevancy rather than by any protection found in this rule.

(a) Federal Constitutional precedent forbids the use of the defendant's suppression hearing testimony as part of the Commonwealth's case in chief but it may be used as impeachment/rebuttal testimony if the defendant testifies inconsistently at trial. Harris v. New York, 401 U.S. 222, 224 (1971); Simmons v. U.S., 390 U.S. 377, 393 (1968).

(b) In a non-suppression case, e.g., child witness competency, KRE 801A would allow introduction of the defendant's preliminary hearing testimony if he testifies inconsistently at trial because the out of court statement would be "offered against" the defendant and therefore not subject to exclusion as hearsay. The importance of limiting defendant testimony at preliminary hearings is apparent.

(c) The preliminary testimony of a defendant at a non-suppression hearing might also be admissible under KRE 804(a)(1) and 804(b)(1) but for the limitation on cross examination and the limited nature of the testimony because this precludes a finding that the defendant had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination.

(d) In any case, the rule of completeness (See KRE 106 and 611(a)), might allow introduction of these preliminary statements if the defendant selectively testifies in a way that might mislead the jury.
104(e)

PREMISE/PURPOSE:

This rule precludes use of pretrial or preliminary judicial rulings on the admissibility of evidence to limit attacks on the weight or credibility of evidence or on the witnesses presenting evidence. The last phrase referring to bias, interest or prejudice was added to the federal language to insure that a party has the opportunity fully to confront the case presented against him. The rule works in favor of any party. Commonwealth v. Hall, Ky.App., 4 S.W.3d 30, 33 (1999).

(a) In a sense, this rule is not necessary when the defendant's out of court confession is introduced against him at trial. While the federal rule says that the confession is not hearsay, KRE 801A(b)(1) says only that it is not excluded by the hearsay rule. The confession is still hearsay [KRE 801(c)] and therefore subject to all the methods of attack authorized by KRE 806.

(b) The last phrase might better have been introduced as part of Article 6, but, regardless of its position, it guarantees the right to show bias, interest or prejudice as to any witness within the general framework of KRE 401-403.

(c) Keep in mind that the language only clarifies the limited effect of the judge's preliminary decision to admit or exclude under KRE 104(a) or (b). It does not prescribe the means by which bias, interest or prejudice are to be shown. Some methods are prescribed in KRE 608, 609 and 613. Some are not. KRE 607 is an open rule that does not limit the ways in which impeachment can be accomplished. Therefore, common law decisions such as Adcock v. Commonwealth, Ky., 702 S.W.2d 440 (1986) have not been superseded.

(d) Of course, any impeachment can open the door to rebuttal evidence. [KRE 106; 801A(a)(2)]. The type and scope of impeachment requires careful consideration.


Rule 105 Limited admissibility.

(a) When evidence which is admissible as to one (1) party or for one (1) purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly. In the absence of such a request, the admission of the evidence by the trial judge without limitation shall not be a ground for complaint on appeal, except under the palpable error rule.

(b)  When evidence described in subdivision (a) above is excluded, such exclusion shall not be a ground for complaint on appeal, except under the palpable error rule, unless the proponent expressly offers the evidence for its proper purpose or limits the offer of proof to the party against whom the evidence is properly admissible.

HIST:  Enacted 1990 Ky. Acts ch. 88, sec. 5; renumbered (7/1/92) pursuant to 1992 Ky. Acts ch. 324, sec. 34.

COMMENTARY

PREMISE/PURPOSE:

One of the fundamental premises of the rules is that evidence of dubious value may safely be presented to the jury if the judge gives the jury a clear instruction as to the proper and limited use of the evidence. This rule sets the mechanism for requesting limiting instructions and explains the consequences of failing to ask for instructions.

(a) The first sentence is a directive to the judge to determine the limits of evidence in cases where it is admissible as to some but not all parties or admissible only for some limited purpose.

(b) Everyone thinks immediately about "the" admonition, the limiting instruction that may be given after a party has impeached a witness by proof of a prior felony conviction pursuant to KRE 609. But this is very limited conception of the applicability and importance of this rule.
 

(1) An admonition is presumed to cure most problems that arise at trial. Mills v. Com monwealth, Ky., 996 S.W.2d 473, 485 (1999). The party claiming otherwise must re- but this presumption.

(2) The guiding principle is whether sensible, fair-minded jurors can be expected to fol- low the admonition. Justice v. Commonwealth, Ky., 987 S.W.2d 306, 314 (1998).

(3) The appellate courts defer to the trial judge's decisions on the need to give an admoni- tion and its contents, if given. Baze v. Commonwealth, Ky., 965 S.W.3d 817, 821 (1997); Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 27 (1998).
 

 (c) In many jurisdictions, the courts have held that an appropriate limiting instruction must be given when other acts evidence under Rule 404(b) has been introduced. U.S. v. Merriweather, 78 F.3d 1070, 1077 (6th Cir. 1996). Bell v. Commonwealth, Ky., 875 S.W.2d 882, 890 (1994) strongly suggests that a limiting instruction will be required in most cases. Bell does not mandate such instructions in every case however.

(d) In non-testifying co-defendant joint trials, there is a question as to whether an admonition will prevent prejudice. The common response to the question is stated in Richardson v. Marsh, 481 U.S. 200 (1987) where the court wrote that it did not know if admonitions worked but that it pretty much was required to hope so.

(e) A limiting instruction to the jury has two effects: (1) the jury might actually use the evidence for its proper purpose; and (2) the prosecutor will not be allowed to misuse the evidence in closing argument.

(f) The Commentary states that this rule will often be used in conjunction with KRE 403 which requires a balancing of the danger of jury misuse of evidence and its probative value. KRE 403 analysis requires consideration of the effectiveness of a limiting instruction as part of the balancing process.

(g) The second sentence of KRE 105(a) continues the common law principle that unobjected-to evidence is admissible for any purpose. In the absence of a request for admonition, the appellate courts will not consider a claim of improper use on appeal unless it rises to the level of palpable error as described in KRE 103(e).

(h) If limited purpose evidence is excluded, the appellate courts will not review a claim of error unless the proponent has expressly stated the limited purpose for which the evidence was to be entered, subject only to palpable error review under KRE 103(e).
 
Rule 106 Remainder of or related writings or recorded statements.

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

HIST:  Enacted 1990 Ky. Acts ch. 88, sec. 6; renumbered (7/1/92) pursuant to 1992 Ky. Acts ch. 324, sec. 34.

COMMENTARY

PREMISE/PURPOSE:

Read literally, this is a procedural rule which explicitly allows variance of the order of presentation of evidence where writings or recorded statements are presented during a party's case. The judge could, under KRE 611 (a), permit interruption of the party's presentation of evidence or the adverse party could deal with the statement or document on cross-examination. [KRE 611(b)]. This rule recognizes that the proper time for dealing with the document or recorded statement is when the witness is on the stand, not later on cross-examination or recall. This rule gives the adverse party, rather than the judge, the right to choose when the other parts of a statement or document will be dealt with. Slaven v. Commonwealth, Ky., 962 S.W.2d 845, 858 (1997).

Rule 107 Miscellaneous provisions.

(a) Parole evidence. The provisions of the Kentucky Rules of Evidence shall not operate to repeal, modify, or affect the parol evidence rule.

(b) Effective date. The Kentucky Rules of Evidence shall take effect on the first day of July, 1992. They shall apply to all civil and criminal actions and proceedings originally brought on for trial upon or after that date and to pretrial motions or matters originally presented to the trial court for decision upon or after that date if a determination of such motions or matters requires an application of evidence principles; provided, however, that no evidence shall be admitted against a criminal defendant in proof of a crime committed prior to July 1, 1992, unless that evidence would have been admissible under evidence principles in existence prior to the adoption of these rules.

HIST:  Enacted 1990 Ky. Acts ch. 88, sec. 7; renumbered (7/1/92) pursuant to 1992 Ky. Acts ch. 324, sec. 34.

COMMENTARY

(a) Parole evidence is not much of a consideration in criminal cases except where written or oral contracts might come up in fraud or theft cases. The Commentary notes that the parole evidence rule is not really a rule of evidence, but is rather a determination by the legislature that a contract would not be useful if it was subjected to oral modifications occurring after execution. [Commentary, p. 12].

(b) After July 1, 1992, subsection (b) would be of interest primarily to persons facing retrial. The rule is that any trial or proceeding that began on or after July 1, 1992 is supposed to follow the Rules of Evidence. For offenses committed before July 1, 1992, the defendant has the option to follow older rules of evidence if evidence admissible under the new rules would not have been admissible under the old law. [e.g., most KRE 804(b) exceptions]. Any appeal of a case tried under the previous common law evidence rules will be decided on that basis. Any retrials of cases originally prosecuted or begun before July 1, 1992 must be considered under the previous evidence law.

(c) The policy of the Supreme Court is to apply the more advantageous law to the criminal defendant. Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 22 (1998). ?
 
J. David Niehaus
Deputy Appellate Defender
Jefferson District Public Defender Office
200 Civic Plaza
Louisville, KY 40202
Tel: (502) 574-3800; Fax: (502) 574-4052

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