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THE ADVOCATE Volume 30, No.1 January 2008
On the other hand, in Stirone v. U.S., 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the Supreme
Court held that, after an indictment has been returned, a charge cannot be broadened through
amendment to include wholly additional factual allegations except by the grand jury itself. The
court reasoned that the substantial right violated by allowing the amendment was “the defendant’s
substantial right to be tried only on charges presented in an indictment returned by a grand jury.”
Id., at 217. So one objection to allowing amendment of the indictment is that it allows the
Commonwealth to proceed on a theory or set of facts never reviewed by a Grand Jury. That is why
§12 of the Kentucky Constitution and RCr 6.02(1) require felonies to be prosecuted by indictment
only, unless the defendant waives the requirement.
In Wolbrecht v. Commonwealth, 955 S.W.2d 533 (Ky.1997), the Commonwealth, in both the
indictment and in its Bill of Particulars, had alleged that the defendants had actually killed the
victim, then amended the indictment to allege that the defendants had been accomplices of some
unknown shooter. The Kentucky Supreme court reversed the conviction, citing Stirone. See also
Commonwealth v. Ellis, 118 S.W. 973 (Ky.1909), quoted in Wolbrecht, for the proposition that a
defendant has the right to rely on the fact that he will only have to rebut evidence of which he was
given notice.
Apprendi - In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Ring v.
Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and U.S. v. Booker, 543 U.S. 220, 125
S.Ct. 738, 160 L.Ed.2d 621 (2005), the United States Supreme Court ruled that, except for prior
convictions, any fact necessary to support an enhanced sentence must be either proven beyond
a reasonable doubt or admitted by the defendant. A defendant is entitled to a jury determination of
any fact which would increase the maximum punishment for an offense.
Presenting Evidence to the Grand Jury – This can be very effective. RCr 5.08 provides that, a
defendant may contact the Commonwealth Attorney in writing, giving notice of his request to
present evidence to the grand jury. The Commonwealth Attorney then informs the grand jury of
the request. However, a defendant has no constitutional right to present evidence to a grand jury.
RCr 5.08 is “simply an indulgence of the court.” Stopher v. Commonwealth, 57 S.W.3d 787, 794
(Ky.2001).
Neither a defendant nor his attorney should contact any member of the grand jury directly, and it
is expressly not a good idea to have the defendant testify. The defendant will be put under oath
(RCr 5.04) and examined by the Commonwealth Attorney (RCr 5.14) without his own attorney
present, (RCr 5.18). See, e.g., Ault v. Commonwealth, 2005 WL 735588 (Ky.App.2005), unpublished,
in which the defendant, on advice from his attorney, went into the grand jury unprepared and made
an awful showing, resulting in his indictment for murder. (The court held that the defendant
probably would have been indicted anyway, but he faced trial having been under oath unable to
keep his story straight. He pled guilty and got 13 years on an amended charge.)
Proof at Trial - In cases of indictments charging multiple offenses over a relatively long period of
time, such as sexual abuse over a period of years, remember that when multiple offenses are
charged in a single indictment, the Commonwealth must introduce evidence sufficient to prove
each offense and also to differentiate each count from the others. Miller v. Commonwealth, 77
S.W.3d 566 (Ky.2002). See also Valentine v. Vonteh, 395 F.3d 626, 634-35 (6 th Cir.2000), in which the
court described each charge as a “carbon copy” of the other, and thus held that the indictment had
not given the defendant adequate notice.
In each of these cases, the alleged victim described a “typical” act of abuse and then simply
estimated how many times it supposedly occurred. In such circumstances, one might also argue
that a corollary of the requirement that multiple charges be differentiable is the requirement that, in
order to be competent to testify, a witness needs to have a distinct memory of each event as a
separate event. See, e.g., Cranmer v. Commonwealth, 2003 WL 21990216 (Ky.2003), unpublished,
in which it was error to allow the victim in a vehicular assault case, and who had no recollection of
what had happened in the accident, to testify nevertheless that it was his habit to turn his headlights
on at night and to use his turn signal.
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