Criminal: COMMONWEALTH V. BUFORD (SCOKY; 4/20/2006)

CRIMINAL – Prior Bad Acts; 5th Amendment
DATE:  4/20/2006

The Commonwealth appeals a decision of the Court of Appeals which reversed the conviction of Buford for two counts of First-Degree Sexual Abuse.  In its opinion, the Court of Appeals cited two primary rationales for reversing the conviction: (1) that the admission of testimony about an exchange between Buford and Greg Waldrop, a friend and fellow minister, was prohibited by the Fifth Amendment; and (2) that the testimony of Buford’s niece, S.B ., relating to allegations of sexual abuse she had made several years earlier was improperly admitted under KRE 403 and KRE 404(b). 

TC failed to correctly decide the preliminary issue of admissibility, namely, whether evidence of S.B.’s allegations qualified as an exception to our rule against the admissibility of prior bad acts.  Ultimately, the Commonwealth must demonstrate that there is a factual commonality between the prior bad act and the charged conduct that is simultaneously similar and so peculiar or distinct that there is a reasonable probability that the two crimes were committed by the same individual . Notwithstanding the competing lists of facts and inferences offered by either party, there is nothing in the record of this case which demonstrates the requisite striking similarity between the incident involving S .B. and that involving J.R. or H .S.

The testimony at issue concerned Defendant’s interaction with another private citizen–neither the government nor one of its agents was involved at any point in the exchange . Put simply, Defendant was confronted by a friend and colleague over troubling allegations of improper sexual behavior. While it was certainly Defendant’s prerogative to refuse to discuss the matter with Waldrop, the Fifth Amendment cannot be used to shield this fact from the jury because constitutional protections against self-incrimination are not triggered absent state action.

Digested by Scott Byrd.

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