(b) A lawyer is a competent witness for any purpose although a lawyer who may be called as a "necessary" witness is bound by RPC 3.7(a) to disqualify herself as counsel and by RPC 1.6 and KRE 503 to maintain confidentiality of any information falling under these rules.

(c) If a judge determines under KRE 601(b) that the person lacks capacity to testify, the judge must disqualify that person. It is not a matter of discretion, because a person lacking capacity is disqualified. The only area of judicial discretion is in determination of capacity which will be reviewed under the usual deferential standard.

(d) Any person who wishes to testify must demonstrate that he (1) was able to perceive accurately the matters about which he proposes to testify, (2) presently has the ability to recall these facts, (3) can, in some meaningful way, communicate these facts to the jury, and (4) understands the obligation to tell the truth.

(e) A witness who is drunk, insane, or mentally incompetent at the time of an incident or at the time of testifying may or may not be disqualified as a witness. The judge must determine whether the witness so "lacked" capacity to perceive or to remember that no jury could rely on what the person had to say.

(f) "Lack" is defined as "entirely without or having very little of" something. American Heritage Dictionary, 3 Ed., p. 1005 (1992). A person who is entirely without or just barely possesses one or more of the required capacities is disqualified on practical grounds. Nothing the witness says is reliable enough to be used or it is unlikely that the jury will comprehend what the witness has to say.

(g) If the person demonstrates marginal capacity, the judge must decide questions of the likely relevance of his testimony and the potential for misleading or confusing the jury under KRE 401-403.

(h) In Federal courts, Morgan v. Foretich, 846 F.2d 941 (4th Cir. 1988) is sometimes cited for the proposition that a witness's incompetency does not necessarily preclude introduction of that person's hearsay statements. The federal rule does not have a counterpart to KRE 601(b), however. The federal rule consists of KRE 601(a) language and a provision about choice of law. This is a critical difference.

(i) In Kentucky, a witness who lacks capacity is disqualified. In hearsay analysis, the declarant is the real witness. The person testifying about the declarant's out of court statements is merely a conduit for the statements. If the declarant would be disqualified to testify in open court, surely that same person as a hearsay declarant can not be heard. The statements of that witness do not become reliable because they were told to someone else earlier out of court, absent a showing that the declarant became incompetent after the out of court statement was made and that the declarant was competent when the statement was made or the event was perceived.

(b) Although it is good practice to establish the basis for the witness's personal knowledge before the witness testifies to important facts, the rules do not require it. The judge has no duty to intervene simply because foundation is not shown. But if the basis of the witness's knowledge is unclear, KRE 611(a) allows the judge to intervene to ask the lawyer to establish the basis or under KRE 614(b) to ask the foundation questions himself. Relying on the judge to practice the case for one side or the other is unwise. The adverse party must demand foundation or the question will be deemed waived.

(c) The second sentence of the rule excuses a formal foundation established through the testimony of the witness. For example, if a videotape from a store shows the witness standing behind the counter looking at the robber, any further testimony as to personal knowledge of the clerk is superfluous.

(d) KRE 703(a) modifies, but does not do away with; the personal knowledge requirement. This rule allows a qualified expert witness to rely on hearsay testimony if this is considered proper in her field of expertise, or to rely on hypothetical facts provided before or during the trial as a basis for the opinion. But the personal knowledge rule is relaxed only to this extent.

(e) A lay witness is required by KRE 701 to base his opinion on facts or circumstances perceived by the witness.

(f) The judge determines personal knowledge as a KRE 104(b) question, that is, by asking whether the jury reasonably could believe the offered facts (i.e., presence at the event) so that personal knowledge is possible. Credibility is not part of this or any other KRE 104(b) determination. The only question is whether there is testimony or evidence establishing the predicate facts to allow the jury to make a rational inference of personal knowledge.

(g) Rowland v. Commonwealth, Ky., 901 S.W.2d 871, 873 (1995), held that hypnotically refreshed testimony of a witness could be admitted under certain conditions. The obvious danger with such testimony is the potential for suggestion to overtake the memory of the witness. However, in this case the court held that because the witness' "pre-hypnotic recollections" had been recorded (in written or taped form) the decision to allow the witness to testify was permissible.
 

(b) In some courts the judge ends the oath with the phrase "so help you God." While this is not offensive to a great majority of witnesses, it is unwise practice. If a witness does not wish to invoke the Almighty, the witness has a constitutional and a legal right not to. To avoid embarrassment and potential prejudice to the party calling the witness, judges either should inquire out of the hearing of the jury how that witness wishes to comply with the rule or simply to ask each witness to swear or affirm without any further embellishment.

(b) KRS 30A.425 lists the circumstances in which the interpreter may be employed including any and all meetings and conferences between client and attorney.

(c) Interpreted conversations between attorney and client are privileged by KRE 503(a)(2)(B) because the interpreter may be considered the representative of the client. KRS 30A.430 provides further protection by prohibiting examination of interpreters concerning such privileged conversations without the consent of the client. The interpreter can not be required to testify to any other privileged communication (e.g., religious privilege) without the permission of the client.
 

(b) Note carefully that this rule only precludes testimony. The presiding judge is bound by KRE 501(2) and (3) to disclose and to produce.

(c) Unless presiding over the trial, a judge is just another witness.

(d) This rule is most often mentioned in regard to predecessor judges testifying for a party. In Bye v. Mattingly, Ky.App., 975 S.W.2d 459 (1996), a judge who had recused himself appeared as a character witness in a will case. The court recognized the potential for prejudice but declined to disturb the trial judge's balancing under KRE 403.

(e) Even if the presiding judge testifies, there is no indication in the rule language that this would always be reversible error. KRE 103(a) precludes reversal except upon showing that the error affected a substantial right of a party.

(f) However, the appellate courts should presume that any testimony by a presiding judge is reversible. A judge is forbidden by SCR 4.300(2) to testify voluntarily as a character witness and is prohibited from lending the prestige of his office to advance the private interests of private parties. The moral position of the presiding judge makes anything he says too prejudicial to the party against whom the testimony is introduced.
 

(b) Nothing in this rule prohibits a grand juror from testifying as to the proceedings by which an indictment was returned. RCr 5.24(1) enjoins secrecy on all participants of a grand jury proceeding "subject to the authority of the court at any time to direct otherwise." A party cannot just subpoena a grand juror and rely on KRE 501 to demand that the grand juror testify. The party must first apply to the grand jury presiding judge, the chief judge of the circuit, or to the judge presiding over the action in order to obtain grand juror testimony.
 

(b) Bias-interest-prejudice - These terms describe evidence that allows the jury to conclude that the witness has a reason for not telling the truth or not telling the whole truth. Typically this is accomplished by introducing evidence that the witness has a grudge or a reason to hold a grudge against a party, that the witness has something to gain or a bad result to avoid by testifying in a certain way, or that for personal reasons the witness is not being square with the jury. This is never a collateral issue. Motorists Mutual Ins. Co. v. Glass, Ky., 996 S.W.2d 437, 447 (1997); Commonwealth v. Maddox, Ky., 955 S.W.2d 718, 720-721 (1997); Weaver v. Commonwealth, Ky., 955 S.W.2d 722, 725 (1997).

(c) Character for (un)truthfulness - By using the methods permitted by KRE 608, the party may demonstrate that no one else believes the witness which leads to the inference that the jury should not believe the witness either.

(d) Prior convictions - Proof of a prior conviction allows an inference that the witness cannot be trusted. KRE 609.

(e) Inconsistent statements - These must be preceded by the foundation prescribed by KRE 613. Inconsistent statements create the inference that the jury cannot trust someone who says different things at different times. If the inconsistent statements are introduced for impeachment only, an instruction limiting the evidence to that use is required. However, because KRE 801A and 804 allow substantive use of out of court statements, limited impeachment is rarely given as a reason to introduce out of court statements.

(f) Contradiction - Evidence introduced through other witnesses may establish that while the witness testified A, B, and C, all other witnesses agree that what really happened was D, E, and F. Circumstantial evidence of the witness's ability to perceive or recall also may be used to impeach under this heading.

(g) The standard rule is that a witness cannot be impeached on a "collateral issue." Eldred v. Commonwealth, Ky., 906 S.W.2d 694, 706 (1994). A matter is considered collateral when it has no substantial bearing on an issue of consequence, that it, when it has no purpose other than contradiction of testimony. Simmons v. Small, Ky.App., 986 S.W.2d 452, 455 (1998).

(h) Nothing in Article 6 precludes the introduction of evidence to impeach. If a witness denies making a deal with the Commonwealth for a good disposition on a plea bargained case, the impeaching party has the right to prove otherwise through stipulation of the Commonwealth or introduction of testimony. Obviously, tape recordings or testimony by witnesses who heard out of court statements are necessary to impeach by this method. The judge has authority under KRE 403 and 611(a) to place limits on how much evidence will be produced and when it can be produced.

(i) Olden v. Ky., 488 U.S. 227 (1988) reversed a Kentucky case that upheld a trial decision to exclude evidence of interracial sexual relations which the proponent wanted to introduce to show a reason to lie. Although KRE 403 and 611(a) give a judge discretion to limit the extent of relevant cross- examination and production of relevant evidence, the 6th Amendment of the U.S. Constitution gives the defendant a right to confront witnesses and to present a defense. Courts must give the defendant a fair chance to undermine the evidence presented against him. Commonwwealth v. Maddox, Ky., 955 S.W.2d 718, 721 (1997).

(j) The rule does not prohibit a party from impeaching his own witness before the other side has a chance to do so. The credibility of any witness may be attacked by any party. For example, the witness's prior conviction might be elicited by the proponent to create a "not hiding anything" rapport with the jury.

(k) But the proponent cannot rehabilitate a witness in advance. The credibility of the witness is to come from demeanor and objective indications that the witness knows what he is talking about. "Bolstering" evidence is irrelevant until the adverse party makes an attack on the witness because it does not contribute to make the existence of a fact of consequence more or less likely. Samples v. Commonwealth, Ky., 983 S.W.2d 151, 154 (1998). "Bolstering evidence" deals with the witness rather than with his testimony. Williams v. State, 927 S.W.2d 752, 763 (Tx.App. 1996). The fact that a witness said the same thing out of court and in court is equally irrelevant. See Rule 801A.

(l) A party cannot use supposed impeachment to introduce otherwise inadmissible evidence. Commonwealth v. Maddox, Ky., 955 S.W.2d 718, 721 (1997); Slaven v. Commonwealth, Ky., 962 S.W.2d 845, 858 (1997). The Supreme Court has stopped short of adopting the federal "primary purpose test," but has made it clear that it will not stand for subterfuge in this area. Thurman v. Commonwealth, Ky., 975 S.W.2d 888, 893 (1998). Such subterfuge is forbidden by RPC 3.4(e) in any event.

(m) In Commonwealth v. Maddox, Ky., 955 S.W.2d 718, 721 (1997), the court noted that the judge may limit impeachment as long as the jury gets a "reasonably complete" picture of the witness’ interest, bias and motivation. The court also commented that a party should be given greater latitude in impeachment of a non-party witness.
 
 

(b) In Tucker v. Commonwealth, Ky., 916 S.W.2d 181, 184 (1996), there is an example of what is no longer permitted. In that case, a defendant cross-examined witnesses about the presence of marijuana to discredit their testimony, essentially, "to impeach the prior victim's credibility with evidence of marijuana." The court was not asked to rule on the admissibility of this evidence under KRE 608, but it is clear that specific situations like this no longer can be the subject matter of cross-examination.

(c) In Pickard Chrysler, Inc. v. Sizemore, Ky.App., 918 S.W.2d 736, 741 (1995), the court held that evidence of the good character of a witness cannot be introduced until after that character has been attacked.

(d) Comments 405(a), (b), and (c) as to opinion testimony apply here.

(f) Reputation is limited to a statement about another witness's general reputation in the community, that is, whether it is good or bad.

(g) The two methods prescribed for attacking credibility are the only methods allowed for rehabilitation as well.

(h) The judge may put limits on the number of witnesses called to testify under this rule because of the limited usefulness of cumulative opinions as to credibility. KRE 403.

(i) KRS 532.055(2)(a)(6) purports to allow prior juvenile adjudications as impeachment evidence during a criminal trial if the offense for which the juvenile was adjudicated "would be a felony if committed by an adult." This is a legislative amendment of KRE 609(a) which limits impeachment to those crimes "punishable by death or imprisonment for one year or more under the law which the witness was convicted." A juvenile public offender is never subjected to these punishments. KRS 635.060. Thus, the statute should not be employed.

(b) Remoteness is the only consideration for exclusion. If a conviction is more than ten years old, it is not admissible unless the judge determines that probative value of proof of the conviction outweighs its prejudicial effect [Subsection b]. The burden of showing this is on the party desiring to use the conviction. McGinnis v. Commonwealth, Ky., 875 S.W.2d 518, 528 (1994).

(c) Remote convictions are excluded on the ground that the jury "might associate prior guilt with current guilt." Perdue v. Commonwealth, Ky., 916 S.W.2d 148, 167 (1995).

(d) The Kentucky rule does not permit identification of the crime unless (1) the witness under cross-examination has denied the conviction or (2) the witness wishes to identify the nature of the conviction for tactical reasons. Slaven v. Commonwealth, Ky., 962 S.W.2d 845, 859 (1997). However, a party can open the door by his action. Tamme v. Commonwealth, Ky., 973 S.W. 2d 13, 28 (1998).

(e) There are two ways to prove prior conviction: (1) an admission from the witness, and (2) an introduction of a public record if the witness denies conviction.

(f) Any crime punishable by death or by a penalty of one year or more under the law of the jurisdiction in which the conviction was had may be used. Any crime, not just those dealing with honesty, may be used.

(g) The rule does not allow a party to ask the witness if he has been convicted of a "felony." The language of the rule allows "evidence that the witness has been convicted of a crime." The question should follow the rule language.

(h) A conviction cannot be used if it was pardoned, annulled, or otherwise set aside because the witness was innocent of the crime. Reversal on appeal or dismissal for insufficient evidence would satisfy the last requirement of the rule. A pardon from the governor under Section 77 of the Constitution would qualify, but a restoration of rights under Section 145 will not.

(i) Because of the highly prejudicial nature of prior conviction evidence, an admonition is called for. The standard admonition given in the circuit judge's book is verbose and confusing. Nothing prevents an attorney from suggesting a simpler admonition like: Members of the jury: The witness has admitted conviction of a crime in the past. You must decide if this conviction affects your estimate of his credibility and how much effect it has. This is the only purpose for which you can use this evidence.
 

(b) For examples, it is permissible for a judge at a competency hearing to ask a child witness if Jesus wants us to tell the truth because the purpose of the evidence is to decide the preliminary question of whether the child can distinguish between truth and lies and understands the obligation to tell the truth. It is not alright for a lawyer to ask the same question on direct or cross-examination of the witness with the expectation that the answer will bolster or undermine the child's credibility with the jury.
 

(2) Avoid needless consumption of time; and

(3) Protect witnesses from harassment or undue embarrassment.

(2) In Commonwealth v. Maddox, Ky., 955 S.W.2d 718, 721 (1997), the court suggested that judges use the considerations set out in KRE 403 to guide their decisions under this rule.

(b) Refreshment is not specifically provided for in the rules. KRE 601(b) and 602 establish oral testimony from personal memory as the norm, but if the witness's memory is not up to the task and the jury will thereby get less than the full truth, the judge may allow refreshment under the general authority to avoid waste of time and to make the presentation effective for discerning the truth. KRE 611

(c) There is no set procedure for refreshment. At minimum the proponent should be able to show the judge that the witness had cause to know the subject matter of the desired testimony but that for some reason, (stage fright, passage of time, illness, etc.), the witness cannot recall or cannot recall well enough to testify coherently or effectively about it. The judge may require the proponent to get permission to refresh or may leave it to the adverse party to object.

(d) If the witness's memory is refreshed, the writing or other prompt should be taken away from the witness so she can testify from memory. Leading questions should be discontinued at this point.

(e) If the refreshment fails, the witness is disqualified to testify for lack of personal knowledge, KRE 602, and cannot testify. Whether the witness is disqualified from testifying at all or only disqualified as to certain subject matters is a judgment call pursuant to KRE 403 and 611(a). If the witness has already testified to some facts, the adverse party may have to file a motion to strike, KRE 103(a), or a motion for mistrial, depending on the party's estimate of the effectiveness of an instruction to the jury to ignore the testimony.

(f) If the witness cannot testify from memory, he may still be the conduit for recorded recollection under KRE 803(5), if he can satisfy the foundation requirements of that rule.

(g) "Use" of the memory prompt is the key concept for determining whether the adverse party is entitled to examine the writing. Prosecutors sometime mail transcripts of statements or other notes to witnesses weeks before trial. Sometimes witnesses review these prompts just before going into the courtroom to testify. In either case, because the prompt was "used" to refresh memory, the adverse party is entitled to look at the writing. The adverse party may ask about use of prompts as a pretrial motion or may elicit this information on cross-examination. KRE 612 differs from the federal rule which contains a specific subsection which allows the judge to order access to statements. The Kentucky language mandates access if the prompt is "used."

(h) The first phrase of the rule, "except as otherwise provided in the Kentucky Rules of Criminal Procedure," subordinates the relief available in this rule to the relief provided for in RCr 7.24 and 7.26.

(i) The rule applies to a witness testifying at a trial, hearing or deposition.

(j) If the proponent of the witness claims that parts of the writing do not relate to the subject matter of the refreshment, the judge is required to make an in camera inspection of the writing to determine if some parts should be deleted before the writing is turned over to the adverse party. Presumably this is a KRE 401-403 determination.

(k) KRE 509 provides that a party may waive a privilege by voluntarily disclosing or consenting to disclose "any significant part" of the privileged matter. If the writing that the proponent wants to use to refresh has privileged matter in it, the proponent must assert the privilege before using the writing as a prompt.

(l) Police officers as witnesses are a particular problem. Officers typically will testify or be led to testify that because the investigation took place several months ago and because they have had several other cases in the meantime, they do not remember all of the details of the subject matter of their testimony. They then proceed to testify, ostensibly from memory, but actually using their case file as a crib sheet. Clearly this hybrid form of testimony is not personal knowledge, refreshed memory or recorded recollection. The judge has authority to allow this hybrid form of testimony under KRE 611(a) & (b) if he finds that it will contribute toward ascertainment of the truth and avoid wasted time. But the judge must consider the likelihood that the jury might be misled. The judge should require the proponent to show the following before allowing this hybrid form of testimony:
 

(b) The rule requires the examiner (KRE 607 allows a party to impeach his own witness), to notify the witness of the time, place and circumstances of the other statement, essentially to refresh his recollection as to the making and substance of the other statement. If the witness recalls the statement, the witness may admit that the other statement is more accurate than in court testimony or may try to reconcile the statements. The witness may deny making the other statement.

(c) The foundation is not elaborate as the following example shows:
 

(e) If the witness denies or cannot recall making the statement or cannot recall the substance of the other statement, this rule and CR 43.07 allow introduction of other evidence to show that the other statement was made, that it was different from trial testimony, that a witness who has made two different statements is untruthful, and that the testimony of such a witness should be disregarded. The adverse party may request a limiting admonition.

(f) KRE 801A(a)(1) exempts the different statement from the hearsay exclusionary rule, KRE 802. Because the statement is relevant, it may be introduced as evidence that the truth is something other than the witness’s trial testimony.

(g) The plain language of this rule and of KRE 801A(a) presume that the maker of the different statement will be present and subject to questioning about the circumstances of the statement and how it came to be made. Thurman v. Commonwealth, Ky., 975 S.W.2d 888, 893 (1998). The second sentence of KRE 613 allows introduction of the different statement when the witness is not present and when the judge finds that the "impeaching party has acted in good faith."

(h) CR 43.07 and KRE 613 use the word "different." KRE 801(a)(1) uses the word "inconsistent" to describe the types of statements that trigger impeachment. Both words imply that the in court testimony differs from the out of court statement by adding or deleting some details. It is not necessary for the statements to be outright contradictory of each other.

(i) The judge must decide whether the difference or inconsistencies in the statements are sufficient to justify impeachment. Impeachment on "collateral" matters is not encouraged. KRE 403; 611(a)(2).

(j) The proponent of a witness does not have an absolute right to rehabilitate the witness by showing other statements consistent with the trial testimony. KRE 801A(a)(2) limits the use of consistent statements.

(k) Party admissions do not require a foundation because they are admissible on the ground that a party and the persons associated with the party should know about them. Thus, the party has no reason to complain when they are introduced.
 

(b) Jurors, as the sole fact finders in a criminal trial, must know all relevant and admissible facts about the case. But the jury is not usually sophisticated enough to discern the difference between what it wants to know and what it is allowed to know. Subsection c allows jurors to submit written questions to the judge who will decide whether the questions may be asked. The requirement of written questions is largely ignored although the substance of the questions usually is preserved on the videotape or stenographic transcript.

As with judge questions, the danger with juror questions is that jurors may be transformed from neutral fact finders to inquisitors or advocates. They may become either after the case is submitted for deliberation, but not before. U.S. v. Ajmal, 67 F.3d 12 (2d Cir. 1995).

(c) To avoid problems of diplomacy, Subsection (d) allows delayed objection.
 

(3) A person whose presence is shown by a party to be essential to the presentation of the party's cause.

(b) This rule is so firmly established that it is easy to overlook the constitutional infringement that exclusion necessarily entails. All trials on the merits in criminal cases are public proceedings. Both the defendant and the general public have constitutional rights to demand admission of relatives, friends and the general public to all criminal trials. [Section 11; First Amendment]. The basis for the rule is that exclusion of witnesses is necessary to protect the integrity of the fact finding process. If that purpose is not served by exclusion in a particular situation, the constitutional right of openness should prevail. Tamme v. Commonwealth, Ky., 973 S.W.3d 13, 29 (1998).

(c) In two recent cases, Justice v. Commonwealth, Ky., 987 S.W.2d 306, 315 (1998) and Dillingham v. Commonwealth, Ky., 995 S.W.2d 377, 381 (1999), the court held that the prosecutor may designate a police officer as the representative of the state to be exempted from a separation order. The theory is that the Commonwealth is not a "natural person" and therefore an individual involved in the investigation may qualify as its employee or agent.

(d) Any party can use subsection (c). Often a party will have an expert witness sit at counsel table or in the courtroom as a prelude to the expert's testimony based on observations made during trial or what the witness has heard in court. An expert is not exempted from separation because she is an expert witness. The party wishing to excuse the expert from separation must obtain the judge's permission under subsection (3).

(e) The rule does not limit the number of persons who can be exempted from the separation order. If the government requires three officers to make sure its presentation is correct, federal courts allow it. U.S. v. Jackson, 60 F.3d 128 (2d Cir. 1995). By the same reasoning, if the defendant needs two or more experts in the courtroom, the judge may permit this.

(f) If a police officer is exempt from separation under Subsection 2, his relevant out of court statements are also exempted from the hearsay exclusionary rule because they are statements of the party's agent or servant concerning a matter within the scope of employment. KRE 801A(b)(4). This means that relevant statements of the officer designated as a representative can be introduced without any showing of inconsistency or the KRE 613(a) foundation. ?