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KENTUCKY
RULES OF CIVIL PROCEDURE CR 43.01 BURDEN OF PROOF (1) The party holding the affirmative of an issue must produce the evidence to prove it. (2) The burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side. [Adopted eff. 7-1-53] CR 43.02 ORDER OF PROCEEDING IN TRIAL When the jury has been sworn, the trial shall proceed in the following order, unless the court, for special reasons otherwise directs: (a) The plaintiff must briefly state his claim and the evidence by which he expects to sustain it. (b) The defendant must then briefly state his defense and the evidence he expects to offer in support of it. (c) The party on whom rests the burden of proof in the whole action must first produce his evidence; the adverse party will then produce his evidence. The party who begins the case must ordinarily exhaust his evidence before the other begins. But the order of proof shall be regulated by the court so as to expedite the trial and enable the tribunal to obtain a clear view of the whole evidence. (d) The parties will then be confined to rebutting evidence, unless the court, for good reasons in furtherance of justice, permits them to offer evidence in chief. (e) The parties may submit or argue the case to the jury. In the argument, the party having the burden of proof shall have the conclusion and the adverse party the opening. If there be more than one speech on either side, or if several defendants having separate defenses appear by different counsel, the court shall arrange the relative order of argument. [Amended eff. 1-1-78; adopted eff. 7-1-53] 43.03 POSTPONEMENT OF TRIAL; MOTION AND AFFIDAVIT A motion to postpone a trial on account of the absence of evidence may be made only upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it. If the motion is based on the absence of a witness, the affidavit must show what facts the affiant believes the witness will prove, and not merely the effect of such facts in evidence, and that the affiant believes them to be true. If the adverse party will consent that, on the trial, the affidavit may be read as the deposition of the absent witness, the trial shall not be postponed on account of his absence. [Adopted eff. 7-1-53] CR 43.04 FORM OF EVIDENCE; TRIAL BY DEPOSITION (1) Form of evidence. In all trials concerning alimony or divorce; the enforcement of a lien or the satisfaction of a judgment; judicial sale; surcharge or accounting; settlement of estates; the division of land; or the allotment of dower, the testimony shall be taken by deposition, unless the court by order or by local rule directs the testimony to be heard under oath and orally in open court. In all other trials the testimony of witnesses shall be heard under oath and orally in open court, unless otherwise provided by these rules or by statute, except that the court may upon motion or upon its own initiative, and with due regard to the importance of presenting the testimony of witnesses orally in open court, order the testimony to be taken by deposition upon any issue which is to be tried by the court without a jury. (2) Time of taking depositions. In all cases where proof is to be taken by deposition without an order of court the plaintiff shall complete his evidence by deposition 30 days after the service of the last pleading directed to the issue. In cases where evidence is ordered taken by deposition the plaintiff shall complete his evidence by deposition 30 days after service of the order directing proof to be so heard. The court may in either case order a shorter or longer period for good cause. The defendant shall complete his proof by deposition 30 days after the termination of the period allowed the plaintiff by this rule or by the court, unless the court for good cause orders a shorter or longer period. The parties shall each have 10 days in which to take rebuttal depositions, unless a longer period is allowed by the court. (3) Procedure. The provisions of Rule 26, 28, 29, 30, 31, 32 and 37 shall apply to depositions to be used under this rule, except that the party taking a deposition shall give prompt notice of its filing to all other parties; and no objection to the competency, relevency or materiality of testimony shall be regarded unless made at the taking of the deposition or subsequently made in writing, specifying the grounds of objection, and served and filed prior to the submission of the case. [Adopted eff. 7-1-53] CR 43.05 SCOPE OF EXAMINATION AND CROSS-EXAMINATION; LEADING QUESTIONS A leading question is a question that suggests to the witness the answer which the examining party desires, and such question may only be used: (a) To interrogate any unwilling or hostile witness. (b) On cross-examination by the adverse party only upon the subject matter of the examination in chief. (c) In all cases where special circumstances make it appear that the interests of justice require such interrogation. [Amended eff. 1-1-78; adopted eff. 7-1-53] CR 43.06 SAME; EXAMINATION OF ADVERSE PARTY A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association, or an administrative officer of the state or any political subdivision thereof, which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief. Except as stated in the preceding sentence, any witness called by a party and examined as to any matter material to any issue may be examined by the adverse party upon all matters material to every issue of the action. [Adopted eff. 7-1-53] CR 43.07 IMPEACHMENT OF WITNESSES A witness may be impeached by any party, without regard to which party produced him, by contradictory evidence, by showing that he had made statements different from his present testimony, or by evidence that his general reputation for untruthfulness renders him unworthy of belief; but not by evidence of particular wrongful acts, except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of a felony. [Adopted eff. 7-1-53] CR 43.08 SAME; PRIOR CONTRADICTORY STATEMENTS Before other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party can present them; and, if it be in writing, it must be shown to the witness, with opportunity to explain it. The court may allow such evidence to be introduced when it is impossible to comply with this rule because of the absence at the trial or hearing of the witness sought to be contradicted, and when the court finds that the impeaching party has acted in good faith. [Adopted eff. 7-1-53] CR 43.09 SEPARATION OF WITNESSES If either party request it the judge may exclude from the courtroom any witness of the adverse party not at the time under examination, so that he may not hear the testimony of the other witnesses. But this rule shall not apply to the parties to the action or the officers of court. [Adopted eff. 7-1-53] CR 43.10 AVOWALS In an action tried by a jury, if an objection to a question propounded to a witness is sustained by the court, upon request of the examining attorney, the witness may make a specific offer of his answer to the question. The court shall require the offer to be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried without a jury the same procedure may be followed, except that the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissable on any ground or that the witness is privileged. [Adopted eff. 7-1-53] CR 43.11 AFFIRMATION IN LIEU OF OATH Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof. [Adopted eff. 7-1-53] CR 43.12 EVIDENCE ON MOTIONS When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions. [Adopted eff. 7-1-53] CR 43.13 AFFIDAVITS; DEFINITION AND CONTENT (1) Affidavits authorized or permitted under these rules, or in any statutory proceeding, shall be a written statement or declaration sworn to or affirmed before an officer authorized to take depositions by Rule 28. If a party is absent from the county, or mentally incapable of taking an oath, or physically unable to attend before an officer, his agent or attorney may make such affidavit, unless otherwise provided by these rules or any statute. Such an affidavit shall state the absence or incapacity of the party and the capacity of the affiant. (2) Every affidavit shall be subscribed by the affiant; and the certificate of the officer or person before whom it is made shall be written separately, following the signature of the affiant, and shall be proof of the time and manner of the affidavit being made. [Adopted eff. 7-1-53] |
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