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STUDY
COMMITTEE'S OFFICIAL COMMENTARY
Subdivision
(a). This provision deals with two elementary aspects of
evidence law. First of all, it recognizes that erroneous rulings
on the admissibility of evidence can be harmless. The use of
harmless error in dealing with evidence issues will occur either on
appeal or in dealing with post trial motions for new trial, judgments
notwithstanding the verdict, etc. Harmless error is defined as
one which does not affect "a substantial right of the party"
against whom it was made. In determining the harmlessness of
error a court will generally have to examine the full facts of the
particular case in which the error occurred and the probable impact of
the error on the triers of fact.
Secondly, the provision deals with the
requirements imposed on parties with respect to offers of proof and
objections. It is widely recognized that these requirements
should be designed to serve three ends: (i) offer counsel a fair
opportunity to address admissibility issues and take corrective
measures when feasible; (ii) provide the trial judge with sufficient
information to assure correct rulings on the admission or exclusion of
evidence; and (iii) provide a record sufficient for an appellate court
to review decisions concerning the admissibility of evidence.
These objectives are served, generally speaking, by requiring that a
proper "offer of proof" be made when attempted to introduce
evidence and that a "timely objection or motion to strike"
be made when trying to prevent the introduction of evidence.
The requirements of subdivision (a) are
consistent with pre-existing law.
It should be noted that a formal offer of
proof may be difficult if not impossible when evidence is excluded
during cross-examination. The witness may be hostile to the
cross-examiner and the attorney may not know exactly what the witness
would say if the cross-examination was permitted to proceed. In
determining whether or not an error has been preserved for appellate
review in this situation, it will be necessary for the appeals courts
to take into consideration the difficulty confronting an attorney when
evidence is excluded during the course of cross-examination.
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Subdivision (b). Most of the
responsibility for making a record for purposes of appeal is and
should be assigned to the parties. The trial judge, however, may see a
need to supplement the efforts of the parties and to provide
additional information in the record pertinent to rulings made on
objections or offers of proof. The first part of the subdivision
(b) recognizes this need and the right of the judge to so act.
The second part of the provision
authorizes the trial court to control the manner in which an offer of
proof is made. The last sentence allows the trial court, at its
discretion, to require that a complete and formal offer be made by use
of question and answer.
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Subdivision (c). The
exclusion of inadmissible evidence can be rendered insignificant if
the proceedings are conducted in such a way that the jury gets the
information indirectly (i.e., through offers of proof, arguments
by counsel, questions to witnesses, etc.). This provision
imposes on the trial court an obligation to guard against the indirect
presentation of inadmissible evidence to the jury. The
obligation is described generally and not specifically, leaving the
trial court with discretion to address the problem on a case by case
basis. The use of pretrial conferences, motions in limine,
hearings in chambers, and sidebar discussions to resolve evidence
issues outside the hearing of the jury is a matter for the trial judge
to control as necessary in a given situation.
In requiring the trial court to act only
"to the extent practicable" the provision recognizes the
facts that no system of controls can shield the jury from all
courtroom developments which might suggest the existence of
information ultimately determined to be inadmissible. There is
no intention in adopting subdivision (c) to add to remedies available
under the law to a party aggrieved by such a development.
Admonitions to the jury should be adequate to remedy the problem in
most instances; declarations of mistrial are possible for serious and
irreparable indiscretions.
Subdivision (c) probably adds a degree of
certainty to the law that existed prior to the adoption of the
Rules. It is more explicity than prior law but adds little of
substance to the long-standing obligation of trial courts to
administer trials in ways that serve the ends of justice.
Top of Page Subdivision (d).
A formal mechanism for obtaining evidence rulings on the
admissibility of evidence would seem to serve at least the following
ends: (i) facilitate trial preparation by providing information
pertinent to strategic decisions; (ii) reduce distractions during
trial and provide for a smoother presentation of evidence to the
jury; (iii) enhance the possibility of settlement of disputes
without trial: (iv) provide some additional insulation of the
jury from prejudicial inadmissible evidence; (v) improve the
conditions under which the trial judge must address evidence issues by
reducing the need for hasty decisions during the heat of trial.
The purpose of subdivision (d) is to acknowledge the value of motions
in limine and to encourage a more widespread use of the device in the
courts of Kentucky.
Motions in limine are probably more valuable for the purpose of
obtaining advance rulings on objections to evidence. But there
is no reason to deny use of the device under appropriate circumstances
to a proponent of evidence. The first sentence of subdivision
(d) intends to make the motion available to both opponents and
proponents of evidence. The second sentence is intended to
recognize that such motions might frame issues which can only be
resolved properly in the context of developments at trial and that the
trial judge must be given great latitude to make or refuse to make
advance rulings on admissibility.
In some jurisdictions the case law leaves doubt about the extent to
which motions in limine may be used to preserve errors for
review. As a result litigants are forced to renew objections or
offers of proof at trial even though brought to the attention of the
judge and opposing counsel prior to trial. Subdivision (d)
eliminates this doubt by providing that motions in limine resolved be
order of record are sufficient to preserve errors for appellate
review. By requiring that such motions be resolved by
"order of record," an adequate record for the appeals court
should be assured. It should be noted that a motion in limine
would not be sufficient to preserve errors for appellate review unless
it provided the trial court with the type of information which would
be required to preserve errors raised at trial (i.e., information
sufficient to satisfy the requirements of subdivision (a) - the
specific ground for any objection being made and the substance of any
evidence being offered).
The last sentence of the provision merely recognizes a right in the
trial court to reconsider advance rulings on evidence issues in the
light of developments at trial. The provision does not attempt
to define the circumstances under which reconsideration would only be
necessary in unusual situations, for a trial judge should not provide
advance rulings on admissibility in situations which might call for
reconsideration at trial.
The Federal Rules of Evidence do not contain a provision on motions in
limine.
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Subdivision (e). The purpose of this provision is to
provide a mechanism by which courts may thwart a plain miscarriage of
justice even though requirements concerning offers of proof and
objections are not satisfied. The Federal Rules have a
comparable provision, as do the Kentucky Rules of Civil and Criminal
Procedure. The provision is designed for occasional and
extraordinary rather than routine use, as indicated in the following
statement about the Federal Rule:
It is old and well-settled law
that issues not raised in the trial court cannot be considered by
this court as a basis for reversal. The purpose of the rule
[the requirement of offers of proof and objections] is to inform
promptly the trial judge of possible errors so that he may have an
opportunity to reconsider his ruling and make any changes deemed
desirable. The result is adhered to save in exceptional
cases where the obvious result "would be a plain miscarriage
of justice," or "inconsistent with substantial
justice." Morrow v. Greyhound Lines, Inc., 541
F.2d 713, 724 (8th Cir. 1976).
"Palpable error" is left undefined, except to identify it as
one affecting "the substantial rights or a party."
This is consistent with the treatment given the concept in other
jurisdictions and under prior Kentucky law. As stated by the old
Kentucky Court of Appeals, the "rule or its application does not
admit of precise definition or limitation. Each case is resolved
into a matter of judicial discretion in excercising the inherent power
of every court to see that a man's fundamental rights are protected in
every case." Davis v. Commonwealth, 162 S.W.2d
778,780 (Ky. 1942).
It should be noted that the language of subdivision (d) is different
from the parallel "plain error" provision of the Federal
Rules. However, it is nearly identical to the language of the
"palpable error" provisions of the Kentucky Rules of Civil
and Criminal Procedure. The desire to have uniformity with the
Federal Rules of Evidence is outweighed in this instance by the desire
to avoid having two different descriptions of the palpable error
concept in state law. There should be very little if any
difference in the substance of the Federal and Kentucky Rules.
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Kentucky Decisions
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Chumbler v. Commonwealth,905 S.W.2d 488 (Ky.
1995). Defendant is not entitled to stipulate away parts of case which he does not want
the jury to see. Prosecution not bound to accept proposed
stipulation.
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Simpson v. Commonwealth, 889 S.W.2d 781 (Ky.
1994). Rulings upon admissibility of evidence are within discretion of trial
judge and should not be reversed on appeal absent clear abuse of discretion.
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Johnson v. Commonwealth, 883 S.W.2d. 482 (Ky.
1994). Even improperly admitted evidence is sufficient to defeat a motion for directed verdict.
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Commonwealth v. Petrey, 945 S.W.2d. 417 (Ky.
1997). Although DNA evidence is not to be accepted per se and should be dealt with on case-by-case basis, there remains duty on party against whom evidence is offered to object to introduction and request pretrial hearing so as to give trial judge opportunity to determine whether evidence should be admitted.
Otherwise may waive objection; here the Defendant waived right to object to introduction of DNA evidence on grounds that expert was not shown to be qualified by failing to interpose timely objection to qualifications, testimony, procedures, or findings offered by the witness.
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Sholler v Commonwealth, 969 S.W.2d 706 (Ky.
1998). Defendant failed to preserve appellate review over
objection to judge's exclusion of psychologist's testimony regarding eyewitness identifications
by not preserving testimony/evidence by avowal.
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Partin v Commonwealth, 918 S.W.2d 219 (Ky.
1996). Counsel failed to preserve by avowal what witness would have
said; appellate court had no basis for determining whether error in excluding witness' proffered testimony was
prejudicial.
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KFBM Ins. Co. v. Jones, 864 S.W.2d 926 (Ky. App.,
1993). Avowal must be such as to inform courts as to what witness would say, and in case where testimony is excluded as being cumulative, offering party ought to tell court why testimony is not cumulative.
Counsel's statement that proposed expert witness had examined photographs of alleged arson scene, did not go to scene, and was needed as witness did not constitute adequate avowal as to what witness would have said if allowed to testify, and thus exclusion of witness' testimony as cumulative was not reviewable on appeal.
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Brock v Commonwealth, 947 S.W.2d 24 (Ky.
1997). Palpable error rule requires showing of manifest injustice.
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O'Bryan v Hedgespeth, 892 S.W.2d 571 (Ky.
1995) . As general rule once motion in limine to exclude evidence has been overruled, party may go forward with adverse evidence to avoid appearance of concealment and still preserve error for appellate review.
This case involved the collateral source rule which was later
ruled unconstitutional.
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