Child’s statements elicited by a counselor during a sexual abuse assessment and in therapy sessions, and by a physician during a sexual abuse examination, were testimonial evidence and therefore 
inadmissible at trial, under the recent United States Supreme Court case of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), where the child did not testify at trial and there was no prior opportunity for cross-examination.

The Confrontation Clause of the Sixth Amendment of the United States Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him.

 

In an employment suit, the COA reversed and remanded for a new trial because the court erred to DAV-KY and Booher’s substantial prejudice during the trial by denying their counsel’s request to examine notes read into evidence by an important adverse witness and by instructing the jury that it could award joint damages for slander.

One-Minute CLE on Slander and Defamation a la Judge Minton:
The law of defamation differentiates between two types of slander: slander per se and slander per quod. Words are slanderous per se when they “are presumed by law actually and necessarily to damage the person about whom they are spoken.” Elkins v. Roberts, 242 S.W.2d 994, 995 (Ky. 1951). The words themselves “must tend to expose the plaintiff to public hatred, ridicule, contempt or disgrace, or to induce an evil opinion of him in the minds of right-thinking people and to deprive him of their friendship, intercourse and society.” CMI, Inc. v. Intoximeters, Inc., 918 F.Supp. 1068, 1083 (W.D.Ky. 1995). 

When there is a claim of slander per se, “there is a conclusive presumption of both malice and damage.”  Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 794 (Ky. 2004). Therefore, “damages are presumed and the person defamed may recover without allegation or proof of special damages.” Id. In contrast, words that are slanderous per quod are not actionable on their face, “but may be so in consequence of extrinsic facts showing damage which resulted to the injured
party.” Pangallo v. Murphy, 243 S.W.2d 496, 497 (Ky. 1951). 

With slanderous per quod statements, “[c]ourts focus not upon the actual meaning of the words but on the extrinsic facts which explain the meaning of the communications.” CMI, supra. To establish an action for slander per quod, a plaintiff must affirmatively prove “special damages, i.e., actual injury to reputation . . . .” Stringer, supra.

One-Minute CLE on Past Recollection Recorded vs. Memory Refreshed:
Finally, DAV-KY and Booher argue that the court erred by refusing to permit examination of the notes used by James to “refresh his memory.”

We agree with this contention. To discuss the merits of this argument more comprehensively, we should clarify the distinction between present memory refreshed and past recollection recorded. 

KRE 612, titled “Writing used to refresh memory,” states:

Except as otherwise provided in the Kentucky Rules of Criminal Procedure, if a witness uses a writing during the course of testimony for the purpose of refreshing memory, an adverse party is entitled to have the writing produced at the trial or hearing or at the taking of a deposition, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. 

In contrast, KRE 803(5) describes past recollection recorded, which is an exception to the hearsay rule, as: 

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’[s] memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not be received as an exhibit unless offered by an adverse party. 

The difference between these two evidentiary concepts is subtle and is often the cause of confusion. As explained by the United States Court of Appeals for the Third Circuit in United States v. Riccardi: 

The primary difference between the two classifications is the ability of the witness to testify from present knowledge: where the witness’[s] memory is revived, and he presently recollects the facts and swears to them, he is obviously in a different position from the witness who cannot directly state the facts from present memory and who must ask the court to accept a writing for the truth of its contents because he is willing to swear, for one reason or another, that its contents are true. 174 F.2d 883, 886 (3rd Cir. 1949).

Citing the case of Jewett v. United States, the Riccardi Court commented that “‘[i]t is one thing to awaken a slumbering recollection of an event, but quite another to use a memorandum of a recollection, fresh when it was correctly recorded, but presently beyond the power of the witness so to restore that it will exist apart from the record.’” Id., citing, Jewett v. United States, 15 F.2d 955, 956 (9th Cir. 1926).

In Kentucky, we recognize that present memory refreshed requires proof “that the witness has a memory to be refreshed,” and “that it needs to be refreshed.” LAWSON, supra, §3.20[7], at 247. The rule permits the use of “[a]lmost any kind of writing . . . to refresh memory, if the trial judge finds that the witness needs
to review the writing to refresh memory and that the writing will likely serve that objective.” LAWSON, supra. Because the writing “is only being used to refresh memory . . . [it] never acquires independent status as evidence in the case.” LAWSON, supra, §3.20[7], at 248. See also, Berrier v. Bizer, 57 S.W.3d 271, 277 (Ky. 2001) (“The resulting evidence is the product of the refreshed memory, not the writing used to refresh it; thus, the writing is not introduced into evidence and there is no involvement of the hearsay rule.”).

Rather, “the evidence is the witness’s refreshed memory and not the writing that was used to bring that memory to the surface.” LAWSON, supra, at §8.85[1], at 725.  On the contrary, past recollection recorded “allows a witness with a faded memory to testify from notes or a memorandum that the witness can show was made by her or under her direction while the information was fresh in the witness’[s] memory and reflects that knowledge correctly.” Hall v. Transit Authority of Lexington-Fayette Urban County Government, 883 S.W.2d 884, 887 (Ky.App. 1994). The rule “requires the offering party to prove and the trial judge to find that the witness ‘has insufficient recollection to enable the witness to testify fully and accurately’ (taking into account the extent to which the memory can be refreshed from examination of the writing).” LAWSON, supra. Under KRE 803(5), “the recorded recollection is admissible, but only after verification of its accuracy. Even if admitted, ‘the memorandum or record may be read into evidence but may not be received as an exhibit unless offered by an adverse party.’” Berrier v. Bizer, 57 S.W.3d 271, 277 (Ky. 2001), quoting KRE 803(5). If a party’s notes do refresh the party’s recollection, “there is no need to admit the recording into evidence, because the witness will be able to testify from his or her refreshed memory.” Brock v. Commonwealth, 947 S.W.2d 24, 30 (Ky. 1997), citing LAWSON, supra, §8.85, at 500.

Conviction affirmed with court rejecting defendant's claims of improper admission of 911 tape, refusal of medical examiner's testimony regarding victim's cause of death, and argument by prosecutor was improper and prejudicial.

Claims of ineffective representation rejected in 11.42.

COA applied proper standard of reasonable suspicion to sustain search and seizure.

Disagreeing with both of these contentions, COA affirmed.   Trial court does not have personal jurisdiction over dad. In particular, rejected mom's contention that dad's appearance before the court in the custody matter subjects him to the court’s jurisdiction with respect to child support.

Although the Kansas court made a journal entry relinquishing to Kentucky jurisdiction over Michael’s motion to modify custody, the journal entry makes no reference to child support and does not 
purport to reflect the parties’ consent. It does not, therefore, satisfy subpart (b)’s requirement of a “written consent . . . for a tribunal of this state to modify the support order.”  Therefore, the Warren Family Court lacked not only personal jurisdiction over Michael, but subject matter jurisdiction to modify the Kansas child-support order.

The issue of coverage in this case turns on the definition of “insured” in the Cincinnati Insurance policy. In relevant part, the UIM provision of the insurance policy defines “insured” to include “family members” of the named insured.  

Residency and intent are questions of fact and not of law where the evidence supports more than one inference upon which reasonable minds may differ. 

Therefore,  a child of separated parents may be a resident of both households, depending upon the facts of the particular case.

This condemnation case turned on the phrase “operates in more than one governmental unit” as meaning that the Board must be created and maintained by more than one governmental unit in order for KRS 416.560(2) to be applicable.  Ernst argued that under Kentucky Revised Statutes (KRS) 416.560(2), Boone County and/or Boone Fiscal Court, and not Kenton County and/or Kenton Fiscal Court, must initiate the condemnation proceedings on behalf of the Board. The circuit court denied the motion, and on May 26, 2004, the court entered its interlocutory order and judgment authorizing the condemnation of Ernst’s property. Affirmed.