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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 48 NOTES
THE ADVOCATE Volume 30, No.1 January 2008 objective fact for her belief, beyond conjecture and speculation, that the client will commit perjury. ... Counsel must rely on facts made known to her by her client, not on a subjective belief that the client might be lying or that the client’s consistent version of events differs from other evidence.” Counsel must then state “all material acts” necessary to establish the conflict between herself and the client. Details are not necessary, “a clear statement of the nature of the problem will suffice.” The court may allow defense counsel to ask the defendant, “What do you have to say to the jury?” and then allow the defendant to proceed in narrative form. Counsel should not abandon the defendant by leaving the courtroom. Brown v. Commonwealth, 226 S.W.3d 74, 84 (Ky.2007). DEFENSE WITNESSES Truthfulness of Other Witnesses - A prosecutor cannot badger a defendant or other defense witnesses into characterizing prosecution witnesses as liars. Witnesses should not be asked to give opinions regarding the truthfulness of other witnesses, as that is the province of the jury. Moss v. Commonwealth, 949 S.W.2d 579 (Ky.1997), citing Howard v. Commonwealth, 12 S.W.2d 324, 329 (Ky.1928) : “Although to aid in the discovery of truth reasonable latitude is allowed in the cross-examination of witnesses, and the method and extent must from the necessity of the case depend very largely upon the discretion of the trial judge, yet, where the cross-examination proceeds beyond proper grounds or is being conducted in a manner which is unfair, insulting, intimidating, or abusive, or is inconsistent with the decorum of the courtroom, the court should interfere with or without objection from counsel. The court not only should have sustained the objections to this character of examination, but should have admonished counsel against such improper interrogation.” Fifth Amendment - Generally, the rule is that a witness cannot be called to testify if it is known that, upon being questioned, the witness will take the Fifth Amendment and refuse to answer. See, e.g., Clayton v. Commonwealth, 786 S.W.2d 866 (Ky.1990). There is, however, an exception to that rule in cases in which the witness can be effectively cross-examined without being provoked to take the Fifth Amendment. A defense witness should not be excluded from trial merely upon the speculation that he or she might take the Fifth Amendment on cross-examination. It was reversible error to exclude the witness when the Commonwealth could have effectively cross-examined the witness without asking the questions which would have provoked the witness to invoke the Fifth Amendment privilege. Combs v. Commonwealth, 74 S.W.3d 738 (Ky.2002). Excluding a defense witness is a drastic remedy, and the trial court has limited discretion in disallowing the evidence. Id., at 743. Improper Cross - A judgment of conviction will be reversed when the prosecutor persists in asking improper and prejudicial questions for the purpose of getting evidence before the jury which the law does not permit the jury to hear. Stewart v. Commonwealth, 213 S.W. 185 (Ky.1919), Nix v. Commonwealth, 299 S.W.2d 609 (Ky.1957), Rollyson v. Commonwealth, 320 S.W.2d 800 (Ky.1959), Vontrees v. Commonwealth, 165 S.W.2d 145 (Ky.1942), Slaven v. Commonwealth, Ky., 962 S.W.2d 845 (Ky.1997). The prosecutor’s persistent questioning about matters excluded by the court when a motion in limine was granted to the defendant required reversal in Cole v. Commonwealth, 686 S.W.2d 831 (Ky.App.1985). A prosecutor should not be allowed to inject false issues into the case during cross-examination. Reversal was required in Woodford v. Commonwealth, 376 S.W.2d 526 (Ky.1964), when the prosecutor injected the false issue of a police chase. It was required in Coates v. Commonwealth, 469 S.W.2d 346 (Ky.1971), when the prosecutor injected the false issue of whether the defendant had trafficked in narcotics while in prison. It was required in Pace v. Commonwealth, 636 S.W.2d 887 (Ky.1982), when the prosecutor asked questions on cross-examination which were based on a factual predicate not supported by the evidence, concerning the time the defendant left his home. It was required in McClellan v. Commonwealth, 715 S.W.2d 464 (Ky.1986), when the prosecutor cross-examined a defense witness concerning whether the defendant was remorseful for killing the wrong man, when there was no evidence the defendant had ever said he killed the wrong person. 49 NOTES
Page 1 and 2: The Advocate Journal of Criminal Ju
Page 3 and 4: DPA TRIAL LAW NOTEBOOK Table of Con
Page 5 and 6: BIFURCATION THE ADVOCATE Volume 30,
Page 7 and 8: COMMONWEALTH, GENERALLY THE ADVOCAT
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Page 17 and 18: MOTIONS IN LIMINE THE ADVOCATE Volu
Page 31 and 32: Juror Has A Close Relationship With
Page 35 and 36: CHECKLIST FOR STRIKING JURORS THE A
Page 37 and 38: ANNOUNCING “READY” THE ADVOCATE
Page 39 and 40: PROSECUTION WITNESSES THE ADVOCATE
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Page 45 and 46: CROSS-EXAMINATION THE ADVOCATE Volu
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Page 59 and 60: DEADLOCK, THE “ALLEN CHARGE” TH
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Page 75 and 76: GUIDE TO KENTUCKY SENTENCING LAW AG
Page 77 and 78: PROBATION ELIGIBILITY THE ADVOCATE
Page 81 and 82: 1 2 3 4 5 6 7 8 9 10 11 12 In anoth
Page 85 and 86: Photographs The witness is familiar
Page 87 and 88: TO JURY SELECTION A. Batson issues.

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