CRIMINAL:  Prosecutor’s leading questions asserted personal knowledge;
DATE RENDERED: 4/19/2007

SC reversed Defendant’s convictions for burglary and robbery due to Commonwealth’s Attorney’s improper conduct. The opening paragraph of this opinion reads: "The Kentucky Rules of Professional Conduct, SCR 3.130, et seq., are mandatory for all Kentucky lawyers. SCR 3.130-3.4(e) provides that a lawyer shall not "assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused ." SCR 3.130-3.7 generally prohibits a lawyer from acting as an advocate at trial where the lawyer is likely to be a necessary witness."

Here, SC found that despite prosecution witness’ denial of the substance of the statements attributed to Defendant, the prosecutor asserted on at least four occasions that witness told her that Defendant had admitted the crime. The effect of the prosecutor’s questions asserting what Bell had said to her placed the prosecutor in the position of making a factual representation . From the tenor of her leading questions to Bell, there is no doubt that she put the very words Bell refused to say in his mouth. The jury was thus informed that Bell had told the prosecutor that Defendant had admitted the robbery. This placed the credibility of the prosecutor before the jury, and from the form of the questions, firmly represented to it that Bell had told her that Defendant had admitted the crime.

Note: Given the Court’s opening paragraph and subsequent characterization of her actions, one has to wonder whether this attorney will have to answer to the KBA. Maybe not if you agree with the dissent.

Digested by Scott Byrd

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