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THE ADVOCATE Volume 30, No.1 January 2008
It is an abuse of subpoena duces tecum power to compel the production of documentary or other
tangible objects to the office of an attorney when other parties receive no notice and the issuance
of the subpoena was not in connection with a deposition or court proceeding, requiring sanctioning
with a public reprimand. Megibow v. K.B.A., 173 S.W.3d 618 (Ky.2005). CR 45.01 states: “Subpoenas
may not be used for any purpose except to command the attendance of the witness and production
of documentary or other tangible evidence at a deposition, hearing or trial.”
See also Ethics Opinion E-423.
RCr 5.06, concerns the use of subpoenas in grand jury proceedings, and was amended by order in
Stengel v. K.B.A., 162 S.W.3d 914 (Ky.2005). See that opinion for the state of the law in that area.
The amendment to RCr 5.06 arguably gives defense counsel the power to subpoena witnesses to
the grand jury.
PRESERVING A CLEAR RECORD ON APPEAL
You will have a lot to think about in any trial, but try to remember the following: (1) If it cannot be
seen or heard on the record, or reconstructed by the written record, it did not happen. All gaps in
the record will be presumed to support the trial court. (2) Watch for dead spots in audio recording
and blind spots in video recording. Know where your microphones are and where the cameras are
aimed. Do not create a dead spot at counsel table by blocking microphones with books and
shuffling papers. (3) Bench conferences: speak up! In courtrooms with modern sound systems,
the white noise you hear when the amplifiers go off will stop the jury from overhearing what you
have to say. If the judge is too far away from the microphone or is whispering, restate the judge’s
ruling into the microphone.
II. THE JURY
PROCEDURE FOR SELECTING A JURY POOL
The master list of prospective jurors includes all persons in the county who are over 18 and have
a license, all those persons on the county’s voter registration lists, and all those persons whose tax
returns show them to be residents of the county. AOC must create a master list “at least annually.”
Administrative Procedure of the Court of Justice, APCJ II, Sec. 2, KRS 29A.040(2). The AOC then
uses a computer to generate a randomized list of potential jurors from the master list, and the chief
circuit judge then takes as many names as needed off the list in sequence. APCJ II, Sec. 3 and 5.
The people are then summonsed and become the jury pool for that county.
Failure to Follow the Procedure – This can require dismissal of the indictment when it involves a
grand jury, Gill v. Commonwealth, 374 S.W.2d 848 (Ky.1964), Fugate v. Commonwealth, 233 S.W.2d
1019 (Ky.1950), or the granting of a new trial when it involves a petit jury, Williams v. Commonwealth,
71 S.W.2d 626 (Ky.1934).
RCr 9.34 requires that, “A motion raising an irregularity in the selection or summons of the jurors or
formation of the jury must precede the examination of the jurors.” This rule applies to grand juries
as well as petit juries. Commonwealth v. Nelson, 841 S.W.2d 628 (Ky.1992). The exception is when
the defendant could not have discovered the irregularities by due diligence prior to the time of trial.
Allen v. Commonwealth, 901 S.W.2d 881 (Ky.App.1995), Bartley v. Loyall, 648 S.W.2d 873
(Ky.App.1982).
Note: In both Commonwealth v. Nelson, 841 S.W.2d 628 (Ky.1992) and Allen v. Commonwealth,
901 S.W.2d 881 (Ky.App.1995), the courts ruled that a judge cannot delegate the responsibility of
reviewing juror qualification forms and disqualifying those jurors who fall under the criteria of KRS
29A.080(2). At the time of those decisions, both APCJ II, Sec. 8 and KRS 29A.080 required the
determination to be made by a judge. However, KRS 29A.080(1) was amended in 2002 and now
allows those determinations to be delegated to court administrators and clerks. APCJ II, Sec. 8 still
requires judges to do the job.
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NOTES