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THE ADVOCATE Volume 30, No. 1 January 2008
Counsel should continue to make Daubert challenges when necessary. In Ragland v.
Commonwealth, 191 S.W.3d 569 (Ky.2006), e.g., the case was remanded for retrial, in part,
because the Daubert analysis conducted by the trial court did not include a consideration of
the scientific reliability of the expert’s conclusions regarding comparative bullet analysis. In
McIntire v. Commonwealth, 192 S.W.3d 690 (Ky.2006), the defendant’s conviction was reversed
because the expert testified outside her range of expertise. The court ruled that she was not
qualified to give an “expert” opinion to the effect that a non-abusing parent would have had to
have been aware of the fact that the child was being abused. See also the developments in
medical research which have caused some forms of shaken baby syndrome to be discredited,
described in “Just Like Humpty Dumpty, Shaken Baby Syndrome Has Fallen Down,” by Susan
Balliet and Erin Yang, The Advocate, vol. 29, no. 5, November, 2007, pp. 17-19.
DEFENDANT IN SHACKLES
This is covered by RCr 8.28(5). This should be allowed only in extraordinary circumstances and
requires findings that the defendant will be violent or a flight risk. Mere signs of displeasure or
disrespect from the defendant are not sufficient. The error may be less harmful, however, in
proceedings in which the defendant has already been found guilty. Lovett v. Commonwealth,
2005 WL 2045483 (Ky.2005), unpublished, Barbour v. Commonwealth, 204 S.W.3d 606 (Ky.2006).
However, see Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), in which the
Supreme Court ruled that it was a violation of due process to routinely shackle defendants
during the penalty phase of a capital proceeding.
And also make sure to object if the jury might have seen the defendant while being moved from
the jail. It is the same kind of prejudice.
DEFENSE THEORIES, TYPES OF
“Practically every defense theory will fall within one of the following defense genres:
1. It never happened – (mistake, setup)
2. It happened, but I didn’t do it – (mistaken identification, alibi, setup. etc.)
3. It happened, I did it, but it wasn’t a crime (self-defense, accident, claim of right)
4. It happened, I did it, it was a crime, but it wasn’t this crime (lesser-included offenses)
5. It happened, I did it, it was a crime, but I’m not responsible (insanity)
6. It happened, I did it, it was a crime, I’m responsible, so what? (jury nullification – known in
some jurisdictions as the ‘he needed killin’’ defense)”
Cathy R. Kelly, “Trial By Design,” The Champion, vol. 26, no. 9, November, 2002, pp. 18-22.
DISCOVERY
“A cat and mouse game whereby the Commonwealth is permitted to withhold important
information requested by the accused cannot be countenanced.” James v. Commonwealth,
482 S.W.2d 92, 94 (Ky.1972). “In a case where the murder is shrouded in mystery and the
question of guilt hung in the balance, it will not do to permit the possibility that victory was
obtained by ambush and surprise, even if we accept that the mistake was not ‘malicious.’”
Barnett v. Commonwealth, 763 S.W.2d 119, 123 (Ky.1989).
Generally, evidence never turned over to the defense before trial is a more serious violation
than evidence turned over too late to meet a statutory deadline. The former may require
reversal, see, e.g., James v. Commonwealth, 482 S.W.2d 92 (Ky.1972), while the latter may be
more likely to be reviewed on appeal by the prejudice/harmless error standard, see, e.g., Neal v.
Commonwealth, 95 S.W.3d 843, 848 (Ky.2003). “A discovery violation justifies setting aside a
conviction ‘only where there exists a reasonable probability that had the evidence been disclosed
the result at trial would have been different.’” Weaver v. Commonwealth, 955 S.W.2d 722, 725
(Ky.1997), quoting Wood v. Bartholomew, 516 U.S. 1, 5, 116 S.Ct. 7, 10, 133 L.Ed.2d 1 (1995).
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