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Playing by Kentucky Rules
Researching the Kentucky Rules of Evidence
Kurt X. Metzmeier
“If you’re gonna play stickball in
Canarsie, learn Brooklyn rules!”
–Jack McCoy, “Law & Order: Blue Bamboo,” 1994.
The Kentucky Rules of Evidence (KRE) are as
an integral part of trial practice as the surprise
confession under a brutal cross-examination
is to the final act of a TV lawyer drama.
Because of this, many newer attorneys may
be shocked to find out that before 1992, Kentucky
had no codified evidence rules.
Indeed, for two centuries Kentucky lawyers
found the rules of evidence in the case law, using
digests and, when there was no state case
on point, in learned treatises like Greenleaf
on Evidence and McCormack on Evidence.
Before the Kentucky Rules of Evidence
The 1970s saw the publication of guides to
Kentucky evidence precedents like Richardson’s
Kentucky Law of Evidence, Civil
and Criminal (1976) and Lawson’s Kentucky
Evidence Law Handbook (1976).
Lawson’s treatise was particularly influential.
It was first published by the Kentucky Administrative
Office of the Courts (AOC). The
AOC was the organizational arm of the state
judicial branch, which had been empowered
by a 1975 state constitutional amendment to
create institutions to unify Kentucky’s courts.
The AOC enlisted University of Kentucky law
professor Robert G. Lawson to arrange all
“significant decisions” on Kentucky evidence
law in an orderly arrangement of black-letter
rules with attached cases and commentary.
The work was intended “as a point of embarkation
for judges and practitioners” to
help them find “quick answers” to evidence
questions.
The original Kentucky Evidence Law Handbook
went into additional editions and became
the authority on the rules of evidence in
Kentucky, assisted by the respect Bob Lawson
has garnered as the evidence professor for
generations of Kentucky lawyers and from
his hard work in a variety of legal reform
efforts in the state.
The Adoption of the KRE
As useful as Lawson’s Handbook was, it was
no substitute for a comprehensive code of
evidence rules. In the 1980s, the Kentucky
Evidence Rules Committee was established
to create such a code.
Chaired from 1987 on by Lawson, the Rules
Committee studied Kentucky precedents,
various model codes and the Federal Rules
of Evidence that had been adopted in 1975.
While the committee sought to “strive for uniformity
with the Federal Rules of Evidence,”
they “carefully prepared for each rule a commentary
which should be used in application
and construction of that rule.” (KRE, Study
Committee’s Prefatory Note). A final draft
report of the committee was completed in
1989, and the Study Committee Notes were
completed in July 1992.
The final version of the KRE was adopted as a
law by the Kentucky Legislature in 1992 (1992
Ky. Acts ch. 324), a move thought necessary
because the new rules repealed existing
statutes.
Interestingly, the Kentucky
Supreme Court, which normally
sets rules of court and
perhaps was concerned that
the legislature had intervened
on some of its turf,
also adopted “so much of the
Kentucky Rules of Evidence…
as comes within the rule making
power of the Court, pursuant
to Ky. Const. sec. 116” by an order dated
May 12, 1992.
Professor Lawson has discussed the KRE’s
unique status as both statute and court rule,
and the constitutional issues it raises, in an
important pair of articles, Interpretation of
the Kentucky Rules of Evidence—What
Happened to the Common Law, 87 Ky. L.J.
517 (1998–99) and Modifying the Kentucky
Rules of Evidence—A Separation of Powers
Issue, 88 Ky. L.J. 525 (1999–2000). (The two
articles are also valuable in that they give a
detailed history of the KRE’s adoption from
someone in the midst of the reform).
Researching the KRE
The best place to start researching an evidence
question is the annotated KRE in the rules
volumes of either the Michie’s or Baldwin’s
KRS. Both sets are annotated with cases citing
the current rule and sometimes with cases
prior to the adoption of that KRE that editors
nonetheless believe are useful. They also give
references to relevant treatise sections and to
law review articles.
One thing to remember is that the Michie’s set
is published by LexisNexis and thus tends to
cite to LexisNexis treatises, and the Baldwin
set is a Thomson West product and favors
its own publications, especially Kentucky
Practice treatises.
Kentucky Treatises
Treatises have always played a major role in
helping lawyers apply the rules of evidence.
Lawson’s Kentucky Evidence Law Handbook,
4th (LexisNexis) is just as valuable as it always
has been and it is not unusual for the first
question by a senior lawyer on an evidence
issue to be “what does Lawson say?” Lawson
[I]t is
not unusual for the
first question by a senior
lawyer on an evidence
issue to be “what does
Lawson say?”
is still a handbook on general Kentucky evidence
law and as such is organized topically
by the leading issues in the field.
Richard H. Underwood and Glen Weissenberger’s
Kentucky Evidence Courtroom
Manual (LexisNexis) is more trial practice
oriented and is organized by KRE section
so that lawyers can find answers quickly
from the counsel’s table. Each entry has the
rule boxed, with commentary, a quick
comparison to the federal rule,
summaries of significant cases,
and cites to other treatises.
One useful feature is that it
duplicates the 1992 KRE
Study Committee Notes in
an appendix.
There are other Kentucky
treatises that partially cover
evidence issues, especially some
of the volumes of Thomson West’s
Kentucky Practice series. Criminal law
practitioners will find Leslie W. Abramson’s
Criminal Practice and Procedure (Thomson
West) very helpful. Evidence issues play a
leading role in David N. Finley and Erin
Carlson’s Kentucky Motions in Limine and,
to a lesser degree, in Gary Weiss’ Trial
Practice. For those Kentucky rules closely
aligned with the Federal Rules of Evidence,
Weissenberger’s Federal Evidence (LexisNexis)
and Charles B. Gibbons’ Federal
Rules of Evidence with Trial Objections
(Thomson West) are valuable supplemental
references.
Legislative History
The most important part of the legislative
history of the original KRE is the 1992
Study Committee Notes. They were published
first in Kentucky Rules of Evidence, a 1992
publication of the University of Kentucky
College of Law Office of Continuing Legal
Education. Robert G. Lawson, William S.
Cooper and William H. Fortune’s Kentucky
Rules of Evidence, 2d is a 2002 update of
that early edition.
The 2002 edition has one table comparing
the KRE with both the Federal Rules of
Evidence and the former Kentucky case
law rules, and another table comparing
the federal “general authority references”
with the 1992 Kentucky study committee
commentary. As mentioned earlier, the
Study Committee Notes can also be found
in Underwood & Weissenberger Kentucky
Evidence Courtroom Manual.
A thorough researcher will also want to examine
the Kentucky Rules of Evidence: Final
Draft of the Evidence Rules Study Committee,
published by the Kentucky Bar Association
in 1989. The bulk of what was ultimately
adopted as the KRE is outlined in this draft
report, which only underwent a few changes
before the final evidence rules were adopted
three years later.
Conclusion
For writers of a Law & Order or CSI episode,
a point of evidence is just a device around
which to build a dramatic plot twist. But for
lawyers, the rules of evidence regulate how
their cases are presented, and whether or
not they can convince a jury to rule on their
clients’ behalf.
It’s not a game of stickball, and they play by
Kentucky rules.
Kurt X. Metzmeier is the
associate director of the
Law Library and Associate
Professor of Legal Bibliography
at the University of
Louisville School of Law.
He is the editor and principal
author of the Kentucky Legal
Research Manual, 3d. •
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www. loubar.org October 2010
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