The Advocate
Volume 22, No. 5, 
September 2000


The Right to Present the Defense Evidence

There is nothing that astonishes man so much as common sense and plain dealing.

— Ralph Waldo Emerson

The right to present a defense is as American as apple pie. Defendants are constitutionally entitled to:

Many of the Kentucky Rules of Evidence are the result of these rights. Much of Kentucky caselaw implements these rights. Fundamentally, Sections 2 and 11 of the Kentucky Constitution and the 6th and 14th Amendments of the United States Constitution guarantee these rights.

Some think that they cannot present or exclude evidence if the KREs do not allow. But that is not the case. The client's constitutional right to present a defense is more fundamental than the KREs and allows the introduction of evidence even if not allowed by the KREs or requires the exclusion of evidence even if not required by the KREs. The reliability of the jurors’ verdict on guilt or innocence and on the degree of guilt and on the extent of punishment requires that a defendant be permitted to fully be heard, to fully present his defense, to rebut prosecution evidence, to call witnesses.

The right to present a defense is constitutionally guaranteed. The sacred right to present a defense is ingrained in our system of justice. After a long history of development, the common law in England "recognized that the accused has a right to present a defense at trial." Imwinkelried, Exculpatory Evidence (1996) at 1.

The United States Supreme Court has found the right to effectively present a defense to be constitutionally required. Evidentiary rules cannot prevent a defendant from presenting his defense. Chambers v. Mississippi, 410 U.S. 284 (1972). In Chambers, Leon Chambers was charged with shooting a policeman in a crowded bar and alley while the policeman was there to arrest another man. Chambers’ defense was that he was innocent. He had two grounds to show his innocence: he did not shoot the policeman, Gable McDonald shot the officer. McDonald confessed that he killed the officer but repudiated the confession. Chambers called McDonald to testify at trial but was prevented from cross-examining him as an adverse witness because of Mississippi’s common law rule prohibiting impeachment of your own witness. Chambers sought to introduce testimony from 3 witnesses to the effect that McDonald admitted he killed the officer to them or made incriminating statements to them. The trial judge refused to allow those witnesses’ testimony, as the testimonies were hearsay. "As a consequence of the combination of Mississippi’s ‘party witness’ or ‘voucher’ rule and its hearsay rule, [Chambers] was unable either to cross-examine McDonald or to present witnesses in his own behalf who would have discredited McDonald’s repudiation and demonstrated complicity." Id. at 294.

The Court held that the exclusion of the defense evidence because it was hearsay and because it violated the voucher rule was an unconstitutional denial of the right to show another person did the crime, which was the defendant's defense. The Court noted that the hearsay statements were made under circumstances that "provided considerable assurance of their reliability." Id. at 300. This included spontaneity of the statements, corroboration of the statements, the number of independent confessions, the statements were against the interest of McDonald. The Court said," The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations. The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process." Id. at 294.

Chambers teaches that state evidence rules or common law caselaw that prevent admission of evidence must fall if a defendant is prevented by them of presenting his defense. Just as significant, Chambers teaches that prevailing requires thorough litigating. Reading the opinion of the United States Supreme Court reveals that the defense attorney litigated this issue prior to trail via motion practice, in court and from multiple perspectives. It is a lesson in the ingredients of persuasion.

Kentucky has recognized that an indigent defendant is entitled, when a proper showing is made, to funds for a mental health expert to "conduct an appropriate examination and assist in the evaluation, preparation and presentation of the defense." Binion v. Commonwealth, Ky., 891 S.W.2d 383, 386 (1995). The court recognized "that in an adversarial system of criminal justice, due to process requires a level playing field at trial…there is a need for more than just an examination by a neutral psychiatrist. It also means that there must be an appointment of a psychiatrist to provide assistance to the accused to help evaluate the strength of his defense, to offer his own expert diagnosis at trial, and to identify weaknesses in the prosecution’s case by testifying and/or preparing counsel to cross-examine opposing experts."

Defendants have a constitutional right to rebut prosecution evidence. The United States Supreme Court has repeatedly held that 14th Amendment due process provides defendants the right to rebut the prosecution’s evidence.

In Ake v. Oklahoma, 470 U.S. 68, 83 (1985) the Court held that a defendant charged with capital murder was entitled to funds to hire a psychiatrist to effectively present evidence of his defense of insanity. But the Court also looked at the penalty phase and held that Ake was also entitled to have the assistance of a psychiatrist on the issue of the aggravating factor of future dangerousness, which was a significant factor in the penalty phase. In effect, the Court held that the defendant was entitled under the due process clause to the ability to mitigate or rebut the state’s evidence in aggravation. "Ake also was denied the means of presenting evidence to rebut the State’s evidence of his future dangerousness." Id. at 83. The principle which underlies this ruling is significant. "This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment’s due process guarantee of fundamental fairness…." Id. at 76.

In Gardner v. Florida, 430 U.S. 349 (1977) the defendant was convicted of murder. In imposing the death penalty, the trial judge said he relied on parts of the presentence investigation report, which were confidential and not disclosed to defense counsel. The Court noted that the sentencing process must satisfy due process requirements capital case, and held that Daniel Gardner was "denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." Id. at 362. We learn from Gardner that fundamental due process requires a defendant the opportunity to deny or explain evidence used against him.

The rule of law of Gardner has been applied by the Supreme Court in other situations. In Skipper v. South Carolina, 476 U.S. 1 (1986) the defendant was convicted of murder and rape and sentenced to death. In the penalty phase Ronald Skipper presented testimony through himself and his former wife that he had behaved well during his over 7 months in jail awaiting trial and tried unsuccessfully to present the testimony of two jailers and a regular visitor that he had adjusted well in jail during the time between arrest and trial. The trial judge ruled that such evidence was irrelevant. During closing argument the prosecutor said that Mr. Skipper, if sentenced to prison, would likely rape other prisoners and be a disciplinary problem in prison. The Court held that evidence of good behavior was admissible as mitigation under Lockett and Eddings but also determined that the defendant was entitled to rebut, deny, explain prosecution evidence of future dangerousness. "Where the prosecution specifically relies on a prediction of future dangerousness in asking for the death penalty, it is not only the rule of Lockett and Eddings that requires that the defendant be afforded an opportunity to introduce evidence on this point; it is also the elemental due process requirement that a defendant not be sentenced to death ‘on the basis of information which he had no opportunity to deny or explain.’ Gardner v. Florida, 430 U.S. 349, 362 (1977)." Id. at 5 n.1.

In Kentucky, the right to rebut is often termed the right to respond when the opponent has opened the door. The right to respond includes the right to respond to evidence that should not have been originally admitted. In Commonwealth v. Alexander, Ky., 5 S.W.3d 104 (1999) a Sheriff’s Deputy was convicted of reckless homicide when his cruiser which was travelling at over 95 miles per hour collided with the victim’s car, as the Deputy was responding to an emergency call. At trial Sergeant Simms testified for the prosecution about his investigation of the scene. On cross-examination, defense counsel asked Simms questions to show the investigation report indicated that the victim, not the Deputy was at fault in the collision. On redirect, the prosecutor asked Simms if he still believed the victim was at fault. The defense unsuccessfully objected and Simms testified that upon further investigation, he believed the Deputy was at fault because of his excessive speed within a city. The issue on appeal was whether Simms could offer his opinion on an ultimate issue for the jury.

The Kentucky Supreme Court recognized the manifest fairness of allowing a party to respond to what the other party has chosen to open up. "We agree with the Commonwealth that the defense did, in fact, 'open the door' by asking Sergeant Simms his opinion about who was at fault for the collision. In Dunaway v. Commonwealth, Ky. 239 Ky. 166, 39 S.W.2d 242, 243 (1931), our predecessor Court held: 'It is an established and recognized rule of practice that a party to litigation, who first introduces into the trial of the case either irrelevant or incompetent evidence cannot complain of the subsequent admission by the court of like evidence from the adverse party, relating to the same matter.'" Id. at 105-106.

The Court also determined that there was no requirement that the prosecution had to object when the door was opened in order for a trial judge to be able to allow responsive evidence. "The Commonwealth’s limited redirect examination regarding the cause of the collision became relevant and admissible pursuant to KRE 401 and 402 once defense counsel opened the door to this line of inquiry." Id. at 106.

The lesson of Alexander is that commonsense ideas of fair play in the hands of a skilled litigator insure that the factfinders will hear both sides of the story and not a skewed set of facts.

Defendants are constitutionally entitled to present exculpatory evidence. In Crane v. Kentucky, 476 U.S. 683 (1986) the16-year-old defendant’s pretrial motion to suppress the confession was denied At trial, Major Crane tried to show his confession was not worthy of belief in light of the affects of the psychological and physical conditions (windowless room, protracted length of questioning, involvement of 6 officers, refusal to allow him to call his mother) in the taking of his confession by the police. The trial judge said such evidence was inadmissible since it only related to the voluntariness of the confession, which he had previously ruled on. The defendant was convicted of murder and sentenced to 40 years.

On appeal, the Kentucky Supreme Court held that "once a hearing is conducted pursuant to RCr 9.78 and a finding is made by the judge based on substantial evidence that the confession was voluntary, that finding is conclusive and the trail court may exclude evidence relating to voluntariness from the consideration by the jury when the evidence has little or no relationship to any other issue. This shall not preclude the defendant from introduction of any competent evidence relating to authenticity, reliability or credibility of the confession." Crane v. Commonwealth, Ky., 690 S.W.2d 753, 755 (1985).

The United States Supreme Court held that it was error to prevent jurors from hearing exculpatory testimony about the environment in which the defendant’s confession was taken by the police since the manner in which it was taken was relevant to the reliability and credibility of the confession. The Court stated that whether found in the 14th amendment due process clause or the 6th amendment’s confrontation and compulsory process clauses "the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’" Id. at 690. In explaining what that meant, the Court said: "That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant’s claim of innocence. In the absence of any valid state justification, exclusion of this kind of exculpatory evidence deprives a defendant of the basic right to have the prosecutor’s case encounter and ‘survive the crucible of meaningful adversarial testing.’" Id. at 690-91.

We learn from Crane that a Kentucky Rule of Criminal Procedure and the interpretation of it by the Kentucky Supreme Court cannot stand in the way of a defendant’s ability to present his full side of the story to the factfinders.

Right to confront witnesses and show testimony false. In Olden v. Kentucky, 488 U.S. 227 (1988) the trial judge refused to allow a black defendant in his kidnapping, rape, and sodomy trial to cross-examine the white complaining witness regarding her cohabitation with a black boyfriend. The Court held this prohibition violated the 6th amendment right to confrontation of a witness to show the falsity of the witness’ testimony. The excluded evidence was relevant to the defense that the black defendant and the white complainant were engaged in a consensual sexual relationship and that the complainant lied in saying the black defendant raped her out of fear of jeopardizing her relationship with her boyfriend. The Court explained its ruling by emphasizing that "‘the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.’" Id. at 231.

It is clear that "’a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors… could appropriately draw inferences relating to the reliability of the witness.’" Id.

"The credibility of a witness’ relevant testimony is always at issue, and the trial court may not exclude evidence that impeaches credibility even though such testimony would be inadmissible to prove a substantive issue in the case." Sanborn v. Commonwealth, Ky., 754 S.W.2d 534, 545 (1988).

Constitutional Right of Defense to test inculpatory and exculpatory evidence. In James v. Commonwealth, Ky., 482 S.W.2d 92, 94 (1972) the Court held that a defendant charged with illegal sale of narcotics was entitled to have a sample of the substance for inspection with his own chemist under Kentucky discovery rules and to avoid a "cat and mouse game whereby the Commonwealth is permitted to withhold important information requested by the accused…"

The defendant in Green v. Commonwealth, Ky.App., 684 S.W.2d 13, 16 (1984) was charged with possession of a Schedule II controlled substance. The state crime lab unnecessarily consumed the entire substance in testing it. The Court of Appeals observed that defense testing is implicitly authorized under Kentucky’s discovery rules. It held under the 14th Amendment due process and Section 11 of Kentucky’s Constitution that "the unnecessary (though unintentional) destruction of the total drug sample, after the defendant stands charged, renders the test results inadmissible, unless the defendant is provided a reasonable opportunity to participate in the testing, or is provided with the notes and other information incidental to the testing, sufficient to enable him to obtain his own expert evaluation. Therefore, the trial court, having refused production of the lab’s notes, the test results (as testified to by forensic chemist, John Harris) regarding the portion of the ‘small, pink, round tablet’, should have been suppressed."

In McGregor v. Hines, Ky., 995 S.W.2d 384, 388 (1999) the Court determined that the defendant who comes into possession of evidence had a due process right to have his own expert test the evidence and does not have to first turn over the evidence to the prosecution's expert. In this case, the testing by the state expert would have consumed the evidence. The defense expert’s more sophisticated testing process would not have consumed the evidence. In a strongly worded statement, the Court determined that the defense should have the evidence to test even if both its and the state’s testing methods would have consumed the evidence. "It is crucial to a defendant’s fundamental right to due process that he be allowed to develop and present any exculpatory evidence in his own defense, and we reject any alternative that would imperil that right."

A defendant is constitutionally entitled to present evidence in mitigation and statutorily entitled to present evidence of leniency. Even if a court finds evidence not admissible in the guilt/innocence phase of a case, evidence which lessens culpability is clearly admissible in the sentencing phase before jurors.

Under the change in KRS 532.055(2)(b), which became effective July 15, 1998, "The defendant may introduce evidence in mitigation or in support of leniency…."

There is constitutional support for this statutory provision. In Skipper v. South Carolina, 476 U.S. 1, 8 (1986) the Court held it unconstitutional to exclude the relevant evidence in mitigation of punishment of the defendant’s good behavior in jail from the time of arrest until trial.

Evidentiary bars must fall to the right to present a defense. In Green v. Georgia, 442 U.S. 95, 97 (1979) Roosevelt Green, Jr.’s defense was that he was not present when the victim was killed and was not a participant in her death. Green was prevented from introducing in the penalty phase of his capital trial a statement made by a witness who had testified for the state at the codefendant’s trail to the effect that the codefendant admitted to he killed the victim. Since it was hearsay. Georgia allowed admission of declarations against pecuniary but not penal interest. According to the United States Supreme Court, the state had no legitimate reason to keep from the jurors evidence which helps them assess the defense presented by the defendant. Fourteenth Amendment due process requires that a state evidentiary bar to admission must fall when evidence is "highly relevant to a critical issue…. and substantial reasons existed to assume its reliability." Id. at 97. Those reasons included; the witness’ statement was spontaneously made, it was against interest, the state used the evidence against the codefendant.

In reversing, the Court citing Chambers said, "the hearsay rule may not be applied mechanistically to defeat the ends of justice." Id. at 97. See also Gilmore v. Henderson, 825 F.2d 663, 665-667 (2d Cir. 1987) (constitutional error to exclude the testimony of witnesses that provided exculpatory testimony and testimony that would have contradicted another’s testimony).

Procedural failures cannot bar right to present defense. In United States v. Foster, 128 F.3d 949 (6th Cir. 1997) the defense attorney failed to timely subpoena a grand jury witness who would have testified to exculpatory evidence. The trial judge refused to allow the introduction of the grand jury transcript due to the defense’s failure to preserve its request for the testimony meant the witness was not unavailable under Federal Rule of Evidence 804(b)(1). Despite the failure of the defense to fully preserve the error, the Sixth Circuit reversed the conviction. The judge’s failure to allow the defense to introduce exculpatory grand jury evidence "could have had a significant impact on the jury’s verdict." Id. at 956.

Fair trials require full presentation of the defense. Our Constitutions insure that a defendant is allowed to present his defense which exculpates him from guilt or exonerates him from a greater degree of guilt or punishment or rebuts harmful prosecution evidence. Defendants deserve to have jurors understand their defense before they render their verdict so their decision is reliable. The public wants verdicts that are correct so they have confidence in them. Full presentation of the defense insures fair process and reliable results. Plain dealing in the presentation of evidence under common sense themes will prove compelling.

Ed Monahan
Deputy Public Advocate
100 Fair Oaks Lane, Ste 302
Frankfort, KY 40601
Tel: (502) 564-8006;
Fax: (502) 564-7890
Email: emonahan@mail.pa.state.ky.us



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