GARRETT CALLAHAN V. COMMONWEALTH, 2009-SC-406, Not to be Published, Reversing and Remanding.
TRIAL TIP:Object to “corpus delicti” prior bad acts evidence.
Concurring in this unpublished opinion, Justices Venters, Schroder, and Scott question the Court’s approval of 404(b) evidence introduced simply to prove that the alleged act occurred. Trial attorneys are encouraged to object to such evidence in order to bring this issue back up to the Court for new consideration:
The majority opinion, with which I fully concur, concludes that the prior bad act alleged here is not similar enough to the crime for which Callahan was being tried to qualify for admission under KRE 404(b). We therefore avoid the need to revisit recent opinions, such as Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky. 2010) and Clark v.Commonwealth, 223 S.W.3d 90 (Ky. 2007) that have allowed the introduction of prior object bad acts, relevant not to prove a specific issue of fact such as the identity or the mental state of the alleged perpetrator, but solely to prove the "corpus delicti" — that is, to show that the alleged crime actually happened.
Upon reflection, it seems that in those and other recent cases, we may have allowed the 404(b) exceptions to completely swallow the 404(b) rule. In practice, the only way that prior bd acts "prove the corpus delicti" is drawn from the natural assumption that the crime must have occurred as the victim claims because the defendant has a history of doing that sort of thing.
This is simply propensity evidence by another name — exactly what KRE 404 and its common law antecedent have prohibited for generations. We have never offered a sound rationale for what I see as a departure from that venerable principle of law. Moreover, our decisions have not given clear guidance on matters such as the degree of proof needed to reliably establish the occurrence of the prior bad acts, or how to gauge the degree of similarity between the crimes on trial and the alleged prior acts.
We have also neglected serious discussion of the role of the KRE 403 balancing test. I would welcome a re-evaluation of this troublesome area of law when the issue is squarely presented in a subsequent case or upon consideration of the matter as part of this Court's rule-making authority.
Schroder and Scott, JJ., join.
Contrbuted by Susan Balliet
