COA - Newkirk - Other Evidence

Commonwealth v. Newkirk, 2011-CA-001819-MR.

Rendered November 21, 2014; TO BE PUBLISHED

NewKirk was indicted for burglary of an apartment.  A video surveillance system at the apartment complex captured the events.  A detective, the victim, and the apartment manager viewed the video together.  The detective observed on the tape a white male wearing blue jeans and a gray long-sleeve shirt using tools to pry open the victim’s window and gaining access to her apartment.  The video was subsequently recorded over.
 

The trial court ruled evidence of the video was to be excluded without specifying a specific rule.  The case was dismissed without prejudice and the Commonwealth appealed the ruling regarding evidence of the video. 

             

 In reviewing the case, the Court of Appeals cited KRE 1004(1), which reads:

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if… [o]riginals lost or destroyed.  All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith. 

 

The Court of Appeals concluded that pursuant to KRE 402 and 1004(1), the testimony of the detective (and anyone who viewed the videotape) is admissible “other evidence” of the contents of the destroyed videotape.   

It should be noted that this Opinion is not yet final and could be reviewed by the Supreme Court.  Despite the Court of Appeals conclusion in this case, the Supreme Court has explicitly “held that a lay witness ‘may not interpret audio or video evidence, as such testimony invades the province of the jury, whose job is to make determinations of fact based upon the evidence.’” Morgan v. Commonwealth, 421 S.W.3d 388, 392 quoting Cuzick v. Commonwealth, 276 S.W.3d 260, 265–66 (Ky.2009) (emphasis in original).  This argument should be used in response to this particular Court of Appeals Opinion.  

Contributed by Brandon Jewell 

In a Case Drawing National Attention, the Kentucky Supreme Court Addresses the Ethics of Waivers of Ineffective Assistance of Counsel in Plea Bargains

DPA General Counsel, B. Scott West, has published an article in the Kentucky Law Journal about the landmark Kentucky case regarding waivers of IAC claims.

United States v. Kentucky Bar Association: In a Case Drawing National Attention, the Kentucky Supreme Court Addresses the Ethics of Waivers of Ineffective Assistance of Counsel in Plea Bargains

In an opinion that is creating ripples throughout the country with respect to the ethics of criminal plea bargaining, the Kentucky Supreme Court in United States v. Kentucky Bar Association affirmed Kentucky Bar Association (“KBA”) Advisory Ethics Opinion E-435 to be a correct statement of the Kentucky Rules of Professional Conduct. That advisory opinion stated that it was a concurrent conflict of interest for a criminal defense attorney to advise a client whether to accept a plea bargain which contained a prospective waiver of a claim of ineffective assistance of counsel (IAC) against that attorney, and that likewise it was a violation of the rules for a prosecutor to induce or assist an attorney to violate the Rules of Professional Conduct by including such a waiver in an offer on a plea of guilty. [Footnotes omitted] 

For the complete article for to this link..