Jan08 Advo.pmd - e-archives Home

THE ADVOCATE Volume 30, No. 1 January 2008
Necessary to Preserve Error – KRE 103(a) explicitly says that failure to make an avowal waives
the issue of the excluded evidence. When evidence is being excluded, failure to make an
avowal has exactly the same effect of never objecting when evidence is being introduced. For
example, the error by the trial court in sustaining objections to cross-examination of a witness
could not be a basis for reversal when the defendant failed to request an avowal, in Jones v.
Commonwealth, 833 S.W.2d 839 (Ky.1992).
Failure to Allow - It is prejudicial error for a trial court to deny a defendant the opportunity to
make an avowal. Jones v. Commonwealth, 623 S.W.2d 226 (Ky.1981), Perkins v. Commonwealth,
834 S.W.2d 182 (Ky.App.1992). The accused has a right to make a record sufficient to permit
appellate review of the alleged errors. Powell v. Commonwealth, 554 S.W.2d 386, 390 (Ky.1977).
DEFENDANT TESTIFYING
A defendant has a constitutional right to testify which cannot be waived by counsel or refused
by a court. Quarels v. Commonwealth, 142 S.W.3d 73 (Ky.2004). A defendant also has a
statutory right to testify in his own behalf under KRS 421.225. This statute also provides that
the defendant’s failure to testify “shall not be commented upon or create any presumption
against him.”
A defendant is subject to the same impeachment as any other witness. Caudill v.
Commonwealth, 120 S.W.3d 635 (Ky.2003). If the defendant takes the stand to testify, he has
waived his 5 th Amendment protection against self-incrimination and may be cross-examined
regarding his pre-arrest silence. Gordon v. Commonwealth, 214 S.W.3d 921 (Ky.App.2006). If
a defendant is being re-tried and testified at the first trial, an authenticated transcript of his prior
testimony can be treated as “the equivalent of a deposition.” RCr 7.22.
If the defendant decides not to testify because he will be impeached by evidence which should
not be allowed into the trial, he cannot preserve his objection to the ruling allowing the evidence
by placing his intended testimony in an avowal. The only way to preserve an error allowing
improper impeachment of the defendant is for the defendant to testify and then object to the
impeachment. Hayes v. Commonwealth, 58 S.W.3d 879 (Ky.2001).
When a defendant has made a confession, the confession has been suppressed, and the
defendant then testifies in trial in a way inconsistent with his suppressed confession, the
defendant, (1) can be impeached with the prior confession if the confession was obtained in
violation of the Fifth Amendment right to remain silent. Harris v. New York, 401 U.S. 222, 91
S.Ct. 643, 28 L.Ed.2d 1 (1971). But (2), cannot be impeached with the prior confession if it was
obtained in violation of the Fourth Amendment right against coerced involuntary confessions.
Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), Michigan v. Harvey, 494
U.S. 344, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990), Canler v. Commonwealth, 870 S.W.2d 219, 221
(Ky.1994).
The defendant cannot be cross-examined concerning evidence which has been suppressed
because of a defective warrant. Roberts v. Commonwealth, 250 S.W. 115 (Ky.1923).
A defendant cannot be impeached with a conviction which is still on appeal. Tabor v.
Commonwealth, 948 S.W.2d 569 (Ky.1997).
It is improper for the prosecutor to cross-examine the defendant regarding the criminal record of
his companion at the time of the offense, and later refer to the companion as a “felon.” Rowe v.
Commonwealth, 50 S.W.3d 216. (Ky.App.2001).
If the question of a client committing perjury arises during trial, Rule of Professional Conduct
3.3 requires defense counsel to bring the existence of a potential conflict to the attention of the
court. Before the attorney does this, however, “she must in good faith have a firm basis in
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