Eric Henderson v. Commonwealth - KSC, 8/21/14, to be published
KRE 404(c) requires notice to be provided only by the Commonwealth, not the defense. However, the rule governing offers of proof— KRE 103(a)(2)— just got harder to meet.
In support of her effort to cross-examine a witness regarding his bias based on prior altercations with the defendant, counsel made the following offer of proof:
Your Honor, we're about to present a theory of defense. His
thing is that this isn't a one night thing. This is something that
had been leading up to what happened that night. We think he
has a right to put on his theory of defense if the defense is that
they, in fact, meant to set him up that night.
He just said that they got into it earlier. It's not saying that
there's any crimes committed or anything, just that they had an
The Court held that while this may have presented the grounds for admission, KRE 103(a)(2) also requires “the substance or content of the excluded testimony.” The above offer of proof was not enough. Justice Noble dissenting.
Seleta Griffith represented Henderson at trial; Susan Balliet represented Mr. Henderson on appeal.
Contributed by Julia Person