KRE 404(b): FERRY V. COM. (COA 3/30/2007)

CRIMINAL:  "Reverse" 404(b) evidence
DATE RENDERED: 3/30/2007

CA vacated and remanded Defendant’s convictions for Trafficking and PFO. TC erred in excluding any evidence pertaining to theft allegations against the arresting officer.

Here, the Defendant alleged that the arresting police officer tampered with evidence seized at the scene. The officer in question had previously been investigated for theft in several unrelated cases and had committed suicide prior to Defendant’s trial. CA termed the evidence sought to be introduced as "reverse KRE 404(b)" evidence. In vacating, CA stated that a lower standard of admissibility should govern “‘reverse 404(b)" evidence because prejudice to the defendant is not a factor. “It is well established that a defendant may use similar ‘other crimes’ evidence defensively if in reason it tends, alone or with other evidence, to negate his guilt of the crime charged against him.” Here, there was enough similarities between the theft allegations against the police officer and the allegations of the Defendant that made the evidence relevant. The failure to balance the probative value of the proposed testimony against the confusion to the jury was an abuse of discretion.

Digested by Scott Byrd.

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