VAUGHN V. COM.
CRIMINAL:
EVIDENCE:  OPINION TESTIMONY AND REPUTATION
2005-SC-000022-DG.pdf
PUBLISHED: REVERSING AND REMANDING
OPINION OF COURT BY SCOTT (CUNNINGHAM, J., DISSENTS BY SEPARATE OPINION, WITH MINTON, J., JOINING THAT DISSENT)
FROM: KENTON COUNTY
DATE RENDERED: 08/23/2007

SYNOPSIS: Trial Court erred by prohibiting evidence from two of alleged victim’s elementary school teachers on girl’s reputation for untruthfulness based upon pre-2003 version of KRE 608.

On discretionary review from the CA, SC reversed and remanded Defendant’s conviction and 10 year sentence for attempted Sodomy in the first degree. Vaughn’s only issue on appeal is whether a grade school setting can satisfy the community requirement in the version of KRE 608 in effect prior to July 1, 2003. Recognizing that a school setting is probably the largest environment a young child will spend time in, other than its home, we now hold that a school can satisfy the community requirement. Since the trial judge ruled that evidence from two of B.D .’s elementary school teachers on B .D.’s reputation for untruthfulness was inadmissible because a school is not an adequate community, error occurred. It is quite possible that omitting B .D .’s alleged reputation had an effect on the verdict, and thus it cannot be harmless error.

Prior to 2003, KRE 608 stated "The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to the limitation that the evidence may refer only to general reputation in the community." It has since been amended to read:

(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:

(1) the evidence may refer only to character for truthfulness or untruthfulness, and

(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. The may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness:

(1) concerning the witness’ character for truthfulness or untruthfulness, or

(2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. No specific instance of conduct of a witness may be the subject of inquiry under this provision unless the cross-examiner has a factual basis for the subject matter of his inquiry. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters which relate only to credibility. 

Digested by Scott C. Byrd
www.olginandbyrd.com