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THE ADVOCATE Volume 30, No.1 January 2008
Officers and investigators are agents of the Commonwealth and any statements taken by them are
in the possession of the Commonwealth, regardless of whether the Commonwealth’s Attorney is
personally aware of them. Anderson v. Commonwealth, 864 S.W.2d 909, 912 (Ky.1993). The
prosecutor’s duty of disclosure extends to evidence in the possession of the prosecutor, his
investigators, and other state agencies as well. Eldred v, Commonwealth, 906 S.W.2d 694 (Ky.1995),
overruled on other grounds.
If the Commonwealth claims to have adopted “open file” discovery, it will be held to full disclosure
on appeal. Hicks v. Commonwealth, 805 S.W.2d 144 (Ky.App.1990), Barnett v. Commonwealth,
763 S.W.2d 119, 123 (Ky.1989).
RCr 7.26, which requires the Commonwealth to provide witness statements at least 48 hours prior
to trial, is not reciprocal.
Neither party in a criminal action is required to disclose a witness list in pre-trial discovery. King
v. Venters, 596 S.W.2d 721 (Ky.1980), Lowe v. Commonwealth, 712 S.W.2d 944 (Ky.1996). “It is our
opinion that there is no authority for requiring a defendant to furnish such a list to the
Commonwealth, and we are not entirely convinced that it would be free of constitutional difficulty.”
King, at 721. See also Commonwealth v. Nichols, 2007 WL 1723371 (Ky.App.2007), unpublished,
for a full discussion. Nevertheless, a court may require a defendant to provide a witness list at trial,
at the outset of voir dire, for the purpose of inquiring of the jurors if any of them were “close
personal friends” or “related by blood or marriage” to any of the named witnesses. Hardy v.
Commonwealth, 719 S.W.2d 727 (Ky.1986).
RCr 5.16(3) provides that, “any person indicted by the grand jury shall have a right to procure a
transcript of any stenographic report or a duplicate of any mechanical recording relating to his or
her indictment...” This includes transcripts of testimony concerning co-defendants. See, e.g.,
Gosser v. Commonwealth, 31 S.W.3d 897 (Ky.2000).
Missing Evidence – In the case of evidence which was simply never collected in the first place, in
order for there to be a due process violation requiring that relief be granted to the defendant, the
defendant must show that the government acted in bad faith. In the case of evidence which was
in the possession of the Commonwealth which was then later lost or destroyed, the defendant
must also show that the exculpatory value of the evidence was obvious prior to destruction, and
that the defendant can obtain the evidence by no other reasonable means. Arizona v. Youngblood,
488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), California v. Trombetta, 467 U.S. 479, 104 S.Ct.
2528, 81 L.Ed.2d 413 (1984), see also Kirk v. Commonwealth, 6 S.W.3d 823 (Ky.1999), and Metcalf
v. Commonwealth, 158 S.W.3d 740 (Ky.2005). When the Commonwealth loses exculpatory evidence,
the proper remedy may be a missing evidence instruction or some prohibitions or limitations on the
Commonwealth’s evidence. Tinsley v. Jackson, 771 S.W.2d 331 (Ky.1989). For example, when a
defendant is charged with a drug offense, the destruction of the total drug sample renders the test
results inadmissible unless the defendant is provided with enough notes and information regarding
the testing to enable him to obtain his own expert evaluation. Green v. Commonwealth, 684 S.W.2d
13 (Ky.App.1984). If one method of testing will result in destruction of the evidence but another
will not, the most benign method of testing should be used first . If both the Commonwealth’s and
the defense’s methods will result in destruction of the evidence, the defense should be allowed to
test first. If neither method will destroy the evidence, the decision concerning who tests first is
within the discretion of the trial court. McGregor v. Hines, 995 S.W.2d 384 (Ky.1999).
Brady - “[T]he suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194,
1197, 10 L.Ed.2d 215 (1963), see also Sweatt v. Commonwealth, 550 S.W.2d 520 (Ky.1977). Brady
material also includes impeachment evidence concerning prosecution witnesses. U.S. v. Bagley,
473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), see also Mounce v. Commonwealth, 795 S.W.2d
375 (Ky.1990). Where a specific request is made for information prior to trial, as in Brady, so long
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