Opinion Testimony: STEWART V. COMMONWEALTH (COA; 2/10/2006)

EVIDENCE – Opinion Evidence (reputation, bad acts, change of KRE 608)

Date: 2/10/2006

Criminal conviction was reversed when trial judge sustained Commonwealth’s objection striking opinion evidence as KRE 608 had been changed in 2003 to mirror the Federal Rules of Evidence and the evidence was admissible.  "Because Beve’s (Stewart)  trial occurred in 2004, after the effective date of the amendment to KRE 608(a), the issue of the admissibility of the testimony regarding Brenda’s truthfulness must be determined under the new rule that a witness, if qualified, can express an opinion as to another witness’s character for telling the truth. Although Kentucky has yet to address the scope of KRE 608(a), the advisory notes to the federal rule and cases applying that rule make clear that opinion testimony such as that offered in this case is admissible."

In addition to presenting two alibi witnesses, Beve called Brenda’s mother as a witness to give evidence concerning Brenda’s character for truthfulness. When asked, she responded, “I don’t know if she’ll tell you the truth or not. She might and she might not.” The trial court sustained the Commonwealth’s objection to the response and admonished the jury to disregard the question and the answer. We agree with Beve that the trial court erred when it sustained the Commonwealth’s objection. (emphasis added).

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