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THE ADVOCATE Volume 30, No. 1 January 2008
Bolstering Witnesses – It is improper to permit a witness to testify that another witness has
made prior consistent statements absent an express or implied charge against the declarant of
recent fabrication or improper influence. Otherwise, the witness is simply vouching for the
truthfulness of the declarant. Dickerson v. Commonwealth, 174 S.W.3d 451 (Ky.2005).
It was reversible error to allow the police detective to testify about the prior consistent statements
of the victim in a sexual assault case when the victim had already given detailed testimony and
the victim’s motive to fabricate, if it existed, remained the same from the start of the investigation
to the time of trial. The detective’s testimony concerning the prior consistent statements had
no probative value and was also highly prejudicial, as it served only to bolster the victim’s
credibility. Smith v. Commonwealth, 920 S.W.2d 514 (Ky.1995)
Testimony of a social worker was inadmissible hearsay as an attempt to bolster the victim’s
testimony where social worker testified before any attack had been made on victim’s credibility.
Reed v. Commonwealth, 738 S.W.2d 818 (Ky.1987). It was reversible error to allow the social
worker to unfairly bolster the credibility of the alleged victim. Smith v. Commonwealth, 920
S.W.2d 514 (Ky.1995).
A police officer was improperly allowed to bolster the credibility of an informant when he
testified that the informant was reliable and that the informant’s work had always ended in
convictions. Farrow v. Commonwealth, 175 S.W.3d 601 (Ky.2005).
Commonwealth’s witness was improperly allowed to testify while holding a Bible. Brown v.
Commonwealth, 983 S.W.2d 513 (Ky.1999).
It was an inadmissible attempt to bolster the victim’s identification of the defendant when the
police officer testified that the victim’s eyes “got larger” when she first spotted a photograph
of the defendant. McGuire v. Commonwealth, 573 S.W.2d 360 (Ky.App.1978).
Investigative Hearsay – The police officer’s actions must somehow be at issue before this kind
of testimony is relevant under KRE 401. Daniel v. Commonwealth, 905 S.W.2d 76. 79 (Ky.1995),
Stringer v. Commonwealth, 956 S.W.2d 883, 887 (Ky.1997). For example, an officer cannot
testify to what he was told by the radio dispatcher that caused him to pull the defendant’s car
over unless the defendant has made that relevant by “opening the door” and claiming an
improper motive in the stop. White v. Commonwealth 5 S.W.3d 140, 142 (Ky.1999). Likewise, it
is error to allow a police officer to testify to why he was suspicious of a defendant in a drugtrafficking
case. Such testimony is based on hearsay and is also irrelevant. Gordon v.
Commonwealth, 916 S.W.2d 176 (Ky.1995).
Furthermore, since a defendant can only make such testimony relevant by “opening the door”
and attacking the officer or the investigation, this testimony will almost never be relevant
during the Commonwealth’s direct examination.
Habit Evidence – Prosecution witnesses should not be allowed to testify to the habits or
routines of a certain class of people in order to show that the defendant acted in the same way.
What other people usually do is not evidence of what the defendant did. For example, it was
reversible error for the prosecution’s witness to testify that the defendant matched the profile
of a pedophile. “Profile” evidence is inadmissible in any criminal case to prove either guilt or
innocence. Dyer v. Commonwealth, 816 S.W.2d 647, 652 (Ky.1991), overruled on other grounds.
See also Tungate v. Commonwealth, 901 S.W.2d 41, 43 (Ky.1995) and Pendleton v.
Commonwealth, 685 S.W.2d 549, 553 (Ky.1985). Likewise, it was error to admit testimony that
methamphetamine users are usually skinny and that 85% of them also use the product. Hayes
v. Commonwealth, 175 S.W.3d 574 (Ky.2005), and reversible error to allow testimony that 90%
of all abused children delay the reporting of the abuse. Miller v. Commonwealth, 77 S.W.3d 566
(Ky.2002). Finally, it was error to solicit evidence that coal truck drivers run red lights and blow
their horns, implying that the defendant, a coal truck driver, acted likewise. Johnson v.
Commonwealth, 885 S.W.2d 951, 953 (Ky.1994).
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