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PROSECUTION WITNESSES
THE ADVOCATE Volume 30, No.1 January 2008
Once a witness is subpoenaed, the witness can only be excused by the court. Defense counsel
was entitled to rely on the fact that the Commonwealth had subpoenaed a witness and it was
improper for the prosecutor to contact the witness and tell him he need not appear at trial. Anderson
v. Commonwealth, 63 S.W.3d 135, 141 (Ky.2001).
In light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), statements
against penal interest are no longer admissible in a criminal trial unless the defendant had the
opportunity to confront the witness at the time the statement was made. Terry v. Commonwealth,
153 S.W.3d 794 (Ky.2005). See also U.S. v. Cromer, 389 F.3d 662 (6 th Cir.2004), in which it was a
violation of the confrontation clause for the investigating officer to tell the jury what the confidential
informant said about the name of the person he sold drugs to, as well as the physical description
of that person and what happened during the transaction.
The prosecutor cannot call a co-defendant to testify that he pled guilty to the charges, or introduce
a co-defendant’s conviction on the same charges. The convictions of co-defendants are not
substantive evidence. “‘It has long been the rule in this Commonwealth that it is improper to show
that a co-indictee has already been convicted under the indictment.’ To make such a reference and
to blatantly use the conviction as substantive evidence of guilt of the indictee now on trial is
improper regardless of whether the guilt has been established by plea or verdict, whether the
indictee does or does not testify, and whether or not his testimony implicates the defendant on
trial.” Tipton v. Commonwealth, 640 S.W.2d 818 (Ky.1982), citing Parido v. Commonwealth, 547
S.W.2d 125 (Ky.1977) and Martin v. Commonwealth, 477 S.W.2d 506 (Ky.1972).
Reversible error occurred when the Commonwealth, over the defendant’s objection, called the
defendant’s co-indictee to the stand knowing she would take the Fifth Amendment, and then
asked her a question she then declined to answer on Fifth Amendment grounds. Higgs v.
Commonwealth, 554 S.W.2d 74 (Ky.1977), see also Bush v. Commonwealth, 839 S.W.2d 550
(Ky.1992). It is improper to call a witness knowing he will refuse to testify. Combs v. Commonwealth,
74 S.W.3d 738, 742 (Ky.2002), citing Clayton v. Commonwealth, 786 S.W.2d 866 (Ky.1990).
Repeated unsolicited statements from the Commonwealth’s witness on direct examination give rise
to the inference that either the witness or the Commonwealth is out of control and, together with
other prosecutorial misconduct, can rise to the level of reversible error. Eldred v. Commonwealth,
906 S.W.2d 694 (Ky.1994), overruled on other grounds, citing Sanborn v. Commonwealth, 754
S.W.2d 534 (Ky.1988), overruled on other grounds.
It is reversible error requiring mistrial which no admonition can cure for a prosecutor to question a
witness in order to assert the content of a former conversation with the witness. Assertions of fact
from counsel concerning the contents of a prior conversation with the witness have the effect of
making the prosecutor the witness and allow the prosecutor to testify to matters no witness has
testified to. The prosecutor should not have been allowed to lead her own prosecution witness.
Holt v. Commonwealth, 219 S.W.3d 731 (Ky.2007).
False Testimony – Due process was denied the defendant when the State’s key witness testified
falsely that he had received no promise of consideration in return for his testimony and the
Assitant State’s Attorney who had promised the consideration did nothing to correct the false
testimony. A state may not knowingly use false evidence, including false testimony, to obtain a
tainted conviction. This principle is implicit in any concept of ordered liberty and does not cease
to apply simply because the false testimony goes only to the credibility of a witness. Napue v.
Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
In order to justify reversal when the defendant’s conviction was based on false testimony and
when the prosecutor did not know that the testimony was false, the defendant must show that
there is a reasonable certainty that the testimony was false and that the conviction probably would
not have resulted had the truth been known to the jury. Commonwealth v. Spaulding, 991 S.w.2D
651 (Ky.1999).
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