Jan08 Advo.pmd - e-archives Home

THE ADVOCATE Volume 30, No.1 January 2008
The right to present a defense includes the rights to: (1) be heard, (2) present evidence central to
the defense, (3) call witnesses to testify, and (4) rebut evidence presented by the prosecution. 6 th
and 14 th Amendments to the U.S. Constitution, Sections 2 and 11 of the Kentucky Constitution.
Constitutional Significance - As a constitutional right, the right to present a defense is more
fundamental than any rule of evidence or procedure. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct.
1038, 35 L.Ed.2d 297 (1972) (common law hearsay rules could not be used to deprive defendant of
his right to present evidence that another person had confessed to the killing), Green v. Georgia,
442 U.S. 95, 97, 99 S.Ct. 2150, 60 L.Ed.2d 738) (“the hearsay rule may not be applied mechanistically
to defeat the ends of justice”), Crane v. Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986)
(KY rule of criminal procedure could not be used to deprive defendant of his right to prove his
confession was not credible), Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988)
(black defendant was deprived of right to present a defense when trial judge ruled he was not
allowed to cross-examine white complaining witness on her cohabitation with a black boyfriend),
U.S. v. Foster, 128 F.3d 949 (6 th Cir.1997) (defendant deprived of right to present exculpatory grand
jury evidence by trial court’s ruling that the witness was not “unavailable” under FRE 804(b)(1)),
Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (defendant deprived of right to
present a defense when not allowed to hire psychiatrist to rebut prosecution’s case for future
dangerousness), Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (defendant
deprived of right to present a defense when death sentence was imposed in part on basis of
information in PSI report which was not disclosed to defendant and defendant had no opportunity
to rebut).
Finally, one should also remember Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d
177 (2004), in which it was held that long-standing exceptions to the hearsay rule (such as statements
against penal interest) could not be upheld at the expense of the basic right to confront.
Alternative Perpetrator - The opportunity to present an “alternative perpetrator” defense is also
fundamental to the right to present a defense and should be allowed if the defense can prove the
alleged alternative perpetrator had both motive and opportunity, the defense does not waste the
court’s time, nor is it likely to confuse or mislead the jury. “[I]f the evidence [that the crime was
committed by someone else] is in truth calculated to cause the jury to doubt, the court should not
attempt to decide for the jury that this doubt is purely speculative and fantastic but should afford
the accused every opportunity to create that doubt.” Failure to allow the defendant to make this
defense was reversible error. Beaty v. Commonwealth 125 S.W.3d 196, 209 (Ky.2003), quoting John
Henry Wigmore, Evidence in Trials at Common Law, § 139 (Tiller’s rev. 1983). See also Holmes v.
South Carolina, 547 U.S. 319, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006), and Blair v. Commonwealth,
144 S.W.3d 801 (Ky.2004).
AVOWALS
Legal Standard – Both KRE 103(a)(2) and RCr 9.52 used to require a question-and-answer avowal
made between the attorney and the witness. It said: “the witness may make a specific offer of his
answer to the question.” Kentucky courts enforced this requirement quite strictly in cases such as
Herbert v. Commonwealth, 566 S.W.2d 798, 803 (Ky.App.1978), Partin v. Commonwealth, 918
S.W.2d 219 (Ky.1996), and Commonwealth v. Ferrell, 17 S.W.3d 520, 524 (Ky.2000), “an alleged
error in the trial court’s exclusion of evidence is not preserved for appellate review unless the
words of the witness are available to the reviewing court.”
Effective May 1, 2007, however, the rule has changed. It now says: “the substance of the evidence
was made known to the court by offer or was apparent from the context within which questions
were asked.” According to Professor Underwood, this rule change brings Kentucky much more in
line with most federal courts and several other jurisdictions. He writes: “After all, what matters is
that the substance of the excluded evidence be apparent to the reviewing court.” Kentucky
Evidence 2005-2006 Courtroom Manual, LexisNexis, 2005, p. 10. Attorney avowals are now
sufficient in Kentucky, although KRE 103(b) still says that the court: “may direct the making of an
offer in question and answer form.”
Avowals can also be made with documents which the court has excluded.
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NOTES