Archive for May, 2013

U.S. DOJ: We don’t need warrants for e-mail, Facebook chats

Thursday, May 9th, 2013

An FBI investigation manual updated last year, obtained by the ACLU, says it’s possible to warrantlessly obtain Americans’ e-mail “without running afoul” of the Fourth Amendment.
by Declan McCullagh

The U.S. Department of Justice and the FBI believe they don’t need a search warrant to review Americans’ e-mails, Facebook chats, Twitter direct messages, and other private files, internal documents reveal.
Government documents obtained by the American Civil Liberties Union and provided to CNET show a split over electronic privacy rights within the Obama administration, with Justice Department prosecutors and investigators privately insisting they’re not legally required to obtain search warrants for e-mail. The IRS, on the other hand, publicly said last month that it would abandon a controversial policy that claimed it could get warrantless access to e-mail correspondence.
The U.S. attorney for Manhattan circulated internal instructions, for instance, saying a subpoena — a piece of paper signed by a prosecutor, not a judge — is sufficient to obtain nearly “all records from an ISP.” And the U.S. attorney in Houston recently obtained the “contents of stored communications” from an unnamed Internet service provider without securing a warrant signed by a judge first.
“We really can’t have this patchwork system anymore, where agencies get to decide on an ad hoc basis how privacy-protective they’re going to be,” says Nathan Wessler, an ACLU staff attorney specializing in privacy topics who obtained the documents through open government laws. “Courts and Congress need to step in.”
The Justice Department’s disinclination to seek warrants for private files stored on the servers of companies like Apple, Google, and Microsoft continued even after a federal appeals court in 2010 ruled that warrantless access to e-mail violates the Fourth Amendment. A previously unreleased version of an FBI manual (PDF), last updated two-and-a-half years after the appellate ruling, says field agents “may subpoena” e-mail records from companies “without running afoul of” the Fourth Amendment.
The department did not respond to queries from CNET Tuesday. The FBI said in a statement that:
In all investigations, the FBI obtains evidence in accordance with the laws and Constitution of the United States, and consistent with Attorney General guidelines. Our field offices work closely with U.S. Attorney’s Office to adhere to the legal requirements of their particular districts as set forth in case law or court decisions/precedent.
Not all U.S. attorneys have attempted to obtain Americans’ stored e-mail correspondence without a warrant. The ACLU persuaded a judge to ask whether warrantless e-mail access has taken place in six of the 93 U.S. Attorneys’ offices — including the northern California office that’s prosecuted an outsize share of Internet cases. The answer, according to assistant U.S. attorney Christopher Hardwood, was “no.”
Still, the position taken by other officials — including the authors of the FBI’s official surveillance manual — puts the department at odds with a growing sentiment among legislators who insist that Americans’ private files should be protected from warrantless search and seizure. They say the same Fourth Amendment privacy standards that require police to obtain search warrants before examining hard drives in someone’s living room, or a physical letter stored in a filing cabinet, should apply.
After the IRS’s warrantless e-mail access policy came to light last month, a dozen Republican and Democratic senators rebuked the agency. Their letter (PDF) opposing warrantless searches by the IRS and signed by senators including Mark Udall (D-Colo.), Mike Lee (R-Utah), Rand Paul (R-Ky.), and Ron Wyden (D-Ore.) said: “We believe these actions are a clear violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures.”
Steven Miller, the IRS’ acting commissioner, said during a Senate hearing that the policy would be changed for e-mail. But he left open the possibility that non-email data — Google Drive and Dropbox files, private Facebook and Twitter messages, and so on — could be accessed without a warrant.
Albert Gidari, a partner at the Perkins Coie law firm who represents technology companies, said since the Sixth Circuit Court of Appeals’ 2010 ruling in U.S. v. Warshak, the Justice Department has generally sought court warrants for the content of e-mail messages, but is far less inclined to take that step for non-email files.
Before the Warshak decision, the general rule since 1986 had been that police could obtain Americans’ e-mail messages that were more than 180 days old with an administrative subpoena or what’s known as a 2703(d) order, both of which lack a warrant’s probable cause requirement and are less privacy protective. Some e-mail providers, including Google, Microsoft, Yahoo, and Facebook, but not all, have taken the position after Warshak that the Fourth Amendment mandates warrants for e-mail all over the country.
The 180-day rule stems from the Electronic Communications Privacy Act, which was adopted in the era of telephone modems, BBSs, and UUCP links, and long before gigabytes of e-mail stored in the cloud was ever envisioned. Since then, the appeals court ruled in Warshak, technology had changed dramatically: “Since the advent of e-mail, the telephone call and the letter have waned in importance, and an explosion of Internet-based communication has taken place. People are now able to send sensitive and intimate information, instantaneously, to friends, family, and colleagues half a world away… By obtaining access to someone’s e-mail, government agents gain the ability to peer deeply into his activities.”
A phalanx of companies, including Amazon, Apple, AT&T, eBay, Google, Intel, Microsoft, and Twitter, as well as liberal, conservative, and libertarian advocacy groups, have asked Congress to update ECPA to make it clear that law enforcement needs a warrant to access private communications and the locations of mobile devices.
In November, a Senate panel approved the e-mail warrant requirement, and acted again last month. Rep. Zoe Lofgren, a Democrat whose district includes the heart of Silicon Valley, introduced similar legislation in the House of Representatives.
The political pressure, coupled with public petitions and increased adoption of cloud-based services, has had an effect. In 2011, James Baker, the associate deputy attorney general, warned that requiring search warrants to obtain stored e-mail could have an “adverse impact” on criminal investigations. By March 2013, however, Elana Tyrangiel, an acting assistant attorney general, indicated that the department would acquiesce on some privacy reforms.
“They dropped their opposition in Congress, but they’re going to try to wiggle out from under the Fourth Amendment whenever possible,” says the ACLU’s Wessler. “They probably realize that they couldn’t figure out a way to respond to hard questions from Congress anymore.”
Separately, the New York Times reported Tuesday evening that the Obama administration may embrace the FBI’s proposal for a federal law mandating that tech companies build in backdoors for surveillance. CNET reported last year that the FBI has asked the companies not to oppose such legislation, and that the FBI has been building a case for a new law by collecting examples of how communications companies have stymied government agencies.
Last week, FBI former counterterrorism agent Tim Clemente told CNN that, in national security investigations, the bureau can access records of a previously-made telephone call. “All of that stuff is being captured as we speak whether we know it or like it or not,” he said. Clemente added in an appearance the next day that, thanks to the “intelligence community” — a likely reference to the National Security Agency — “there’s a way to look at digital communications in the past.”

Wednesday, May 8th, 2013


In two federal trials for wire fraud the judges disagreed on the applicable law pertaining to a $200 million dollar settlement of a diet drug lawsuit.
In the first trial the judge ruled it was a class action settlement and the jury was instructed that the defendant lawyers had an obligation to give notice on the fee hearing and the distribution of excess funds. The jury was instructed that if failure to do so was not done with the intent to commit fraud on the clients the jury should acquit. After several days of deliberation the jurors deadlocked 10 voted to acquit.
In this trial the defendants were indicted and charged with not following class action law.Stan Chesley a nationally recognized class action expert testified that he advised the defendants to hold back excess monies for other potential claims and if none developed then to give the excess funds to the 440 clients who were represented by the defendants.
In the second trial the judge ruled it was an aggregate settlement and the jury was instructed that the defendants had an obligation to follow the duties set out in the aggregate settlement rule 3.130 (1.8)(g) of the Rules of the Supreme Court of Kentucky.
Stan Chesley repeated the testimony he gave in the first trial. In both trials the defendants pled they relied on Stan Chesley’s advice in administrating the settlement.
The defendants had voluntarily agreed to withdraw from the Kentucky Bar Association with an agreement that the admissions made and the disbarment proceedings would not proceed until after the criminal trial was concluded. Immediately after the mistrial the KBA initiated disbarment and the defendants were disbarred prior to the second trial.
The Chief Bar Counsel of the KBA was a witness in the second trial who testified extensively on the Findings of Fact and the Order disbarring the defendants which was admitted into evidence in the second trial.
The KBA cooperated with the government in both trials and knew Stan Chesley’s hold back testimony. The KBA also knew they had filed charges against Stan Chesley accusing him of advising the state court judge who presided over the $200 million dollar settlement that once the 440 clients had given Releases in a class action settlement the remaining funds were Excess that the state court judge was responsible for distributing.
The state court judge, both defendants and a trial consultant knew Stan Chesley was at the fee hearing and so advised the judge and additional gave the judge the Grinnel factors used by courts in determining attorney fees. Stan Chesley testified he didn’t recall being at this hearing where the court approved a $100 miillion dollar attorney fee to be shared by five law firms.
The AUSA who questioned the state court judge before the Grand Jury asked the judge if he believed Stan Chesley was equally accountable as the other defendant attorneys. In grand jury testimony the state court judge laid out the fact that it was Stan Chesley who led off the fee hearing discussing a cy pres trust as a vehicle to receive Excess Funds from the settlement.
The KBA made a Motion for a Protective Order in the second trial to prevent the defense from questioning government witnesses on pending bar charges. Counsel for the KBA was seen entering the chambers of the federal judge the evening before counsel made this Motion. The judge was asked immediately after the Motion had been granted if he had contact with the KBA that the defense was not aware of. The Judge responded you can ask but I don’t have to answer.
Three government witnesses had pending bar charges to wit: Stan Chesley, Joseph Bamberger, the state court trial judge, and David Helmers a law associate, of the defendant, who was extensively involved in the litigation.
The KBA files might have shown Stan Chesley was accused of conduct that directly contradicted testimony he gave in both trials.
Judge Bamberger’s file might have shown he gave incorrect testimony concerning what the defendant told him concerning the clients knowledge on the disposition of $20 million dollars to the charity the judge ordered. At the Hearing on the creation of the charity the judge said the defendant told him the clients were thrilled with putting $20 million dollars in to a charity. In the a proceeding before the Judicial Conduct Commission ( where he was reprimanded ) he said he didn’t know what the client knew concerning Excess funds.
The defendant denied the Judge’s testimony. The defendant theorized that he may have told the judge the clients were thrilled with getting a second distribution of funds that he had previously approved at the fee hearing.
The KBA had knowledge of information in the files of the government witnesses that contradicted testimony they gave in the criminal trials.
Did the KBA violate the Civil Rights of the Defendants ?


Wednesday, May 8th, 2013

Morgan v. Getter (Ky. App., 2013) February 22, 2013

In this case, the court stated on the record that it appointed the Guardian Ad Litem for the purpose of representing A.G. The court was authorized by FCRPP 6 to make the appointment.

The GAL who was appointed is a licensed attorney and is, therefore, subject to the Rules of the Supreme Court (SCR) governing attorneys’ conduct. Under the circumstances, the GAL potentially would have violated two rules if he had testified.

First, SCR 3.130-1.6 prohibits a lawyer from revealing confidential information. If the GAL had been subject to examination and cross-examination, he likely would have been in the untenable position of revealing confidential communications between himself and his client. Furthermore, the GAL’s testimony would have been a violation of SCR 3.130-3.7:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.

Morgan has not suggested that the GAL was subject to any of these exceptions. Therefore, as A.G.’s advocate in the custody proceedings, it would have been unethical for the GAL to be questioned concerning his report. The court properly denied Morgan’s motion to examine the GAL.

Morgan also contends that the court erred in denying her motion to strike the GAL’s report. This argument is premised on the contention that it was error not to allow her to cross-examine the GAL. Having held that the examination of the GAL would have been improper, we conclude that there is no merit to the allegation that the report should have been stricken.

The court appointed the GAL to provide an opinion and advice – essentially to counsel the court in formulating its decision. See FCRPP 6. It would have been counter-productive for the court to have been forced to disregard the GAL’s report. The court did not err by considering the report in its exercise of its considerable discretion.

All the attorneys in this case agree that courts and attorneys find themselves in a quandary due to the lack of statutory definition of the proper role of a GAL in a custody proceeding. Opinions submitted by professionals who are not GAL’s are subject to cross-examination. KRS 403.290(2).

However, because a GAL is governed by the Rules of Professional Conduct, lawyers serving as GAL’s cannot be cross-examined by parties as to the basis of their recommendations sought by the courts appointing them.
The conflict is patent: is the GAL acting as advocate for a client or for expert counselor to the court?

The ambiguity creates a clear potential for prejudice by precluding cross-examination of a GAL by the parties whose interests are at issue and are the very subject matter of the report prepared by the GAL at the behest of the Court.

We believe that the potential for prejudice and the inherent conflict created by lack of clarity in the statute merits (indeed necessitates) the scrutiny of the General Assembly and/or the Supreme Court to define the proper role of a GAL in child custody issues.

CLAYTON, JUDGE, CONCURRING: I concur with the result reached by the majority, but I write separately. I do not think it was proper for the court in this case to admit the report of the GAL when the GAL was representing A.G.

Neither the appellant nor the appellee should have been placed in a position where A.G.’s attorney not only functioned as her legal representative but also served as an advisor or expert to the court.

The GAL was asked to serve in conflicting roles. Further, I do not think that FCRPP 6 (1) differentiates GALs from other professionals. Unlike any other advisor, the GAL in this matter was not subject to examination and, therefore, his report was admitted without challenge


Wednesday, May 8th, 2013

[U] Adams v. Cook (Ky. App., 2012) August 24, 2012

Finally, Adams asserts the trial court misapplied FCRPP 31 in the neglect action and should have treated the neglect action and the custody case as one.

We have been cited no case interpreting FCRPP 31 which requires that “any new allegation or request for removal after a child has achieved permanency shall be filed as a new action.” We question whether the new rule was applicable in this case because it does not appear that permanency had been achieved when the rule change was discussed in the trial court on March 28, 2011.

However, during the hearing on Adams’s motion to intervene, counsel agreed with the trial court’s statement that intervention was no longer allowed under the new family court rules and a new action would have to be initiated.

Counsel explained that he filed pleadings in the neglect action just to get the matter before the trial court as quickly as possible in an attempt to return things to the way they were before the entry of the two erroneous orders giving custody of C.L.W. to Cook.

Adams cannot change her approach to now argue that intervention was still allowed under the new rule and the trial court erred in requiring the filing of a separate custody case.

As has been said before, an appellant may not “feed one can of worms to the trial judge and another to the appellate court.” Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976) (overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010)). Thus, this allegation of error in the neglect action is not properly before us.

Adams v. Cook (Ky. App., 2012)


Sunday, May 5th, 2013

Allen v. Commonwealth – Ky Sup. Ct., 2013 – March 21, 2013



B. Allen was entitled to inquire into the conduct underlying Weaver’s convictions on cross-examination under KRE 608(b).

….. Given the preference for resolving cases on statutory or other non-constitutional grounds when possible, this Court addresses Allen’s claim about KRE 608(b) first.
Allen notes in her brief that her “trial counsel sought merely to cross-examine Weaver about the nature of the prior acts for which he was convicted, because such acts were highly probative of his character for truthfulness.” However, during the avowal, Allen’s trial counsel confronted Weaver with copies of his various convictions and read parts of them out loud, though these documents were not added to the record for appeal.
Generally speaking, reputation evidence is admitted in the form of opinion or general reputation. See KRE 608(a). Indeed, before 2003, such evidence could “refer only to general reputation in the community.” KRE 608 (1992)). And ordinarily, a person’s other crimes or bad acts, other than those that the trial is about, are inadmissible, with some limited exception. See KRE 404(b).
But in 2003, KRE 608 was substantially amended to track the federal version of the rule. See Supreme Court Order 2003-3 (April 23, 2003). Now, under KRE 608(b), specific instances of bad conduct reflecting on the witness’s dishonesty may be inquired about. The rule provides:
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. They 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.
KRE 608(b). Of particular importance, the rule does not allow proof of specific instances of conduct by extrinsic evidence. Instead, counsel is limited to asking the witness about the specific instance of conduct on cross-examination and is stuck with whatever answer is given. KRE 608(b) distinguishes general instances of behavior from convictions, which it states can be proven only under KRE 609, which does allow proof by extrinsic evidence in the event the witness denies a bona fide conviction, and which deals only with felony convictions.
In 2010, this Court held that KRE 608 did not apply to conduct that had resulted in a criminal conviction, which instead is covered by KRE 609. See Childers v. Commonwealth, 332 S.W.3d 64 (Ky. 2010). This Court stated: “KRE 608(b) permits impeachment only by specific instances of conduct that have not resulted in a conviction while evidence relating to impeachment by criminal conviction is governed solely by KRE 609.” Id. at 69; see also id. at 72 (“[W]e hold that KRE 608 permits impeachment only by specific acts that have not resulted in a criminal conviction. Evidence relating to impeachment by criminal conviction is governed solely by KRE 609.”).
In so holding, this Court rejected the exact proposition that Allen now urges, and instead adopted the federal approach as to which subjects are covered by KRE 608 and 609. Id. at 69-70. Thus, under Childers, where the acts in question result in a criminal conviction, they are admissible for character purposes only when KRE 609 allows it. Id.
Under Childers, the acts Allen sought to ask about resulted in convictions and thus are covered only by KRE 609, which only allows inquiry into whether the witness is a convicted felon. If the witness admits the felony conviction, then that is the end of the inquiry; if the witness denies the conviction, then extrinsic proof of the conviction may be admitted. Unlike the federal rule, KRE 609 does not allow proof that the witness was convicted of a non-felony (usually a misdemeanor) involving dishonesty or reflecting on character for dishonesty.
But the inability to inquire in any way about misdemeanor convictions reflecting on dishonesty illustrates a substantial hole in the present KRE 608 – 609 regime. Though it was not necessary to the holding, Childers sought to fill that hole by stating in a footnote that “under Rule 609, evidence of a misdemeanor conviction can never be admitted.” 332 S.W.3d at 71 n.2. Allen urges that this rule should not apply to Weaver’s misdemeanor convictions, in part because Childers was concerned only with felony convictions, if we are not inclined to overrule. Allen’s claim is driven by the assumption that evidence of criminal dishonesty should be admissible, even (and perhaps especially) when it results in a conviction.
This Court agrees that such a result seems to be, simply unfair. Childers allows the absurd result that misdemeanor-level dishonest conduct is admissible under KRE 608(b) if a person were simply lucky enough not to have been convicted (whether because the crime was never charged or the charge was dismissed), but that a person who has actually been convicted of a misdemeanor involving a crime of dishonesty could avoid impeachment.
This, then, requires a closer examination of Childers and its reading of the interplay between KRE 608 and 609. In choosing to reexamine Childers, we are mindful of the constraints of stare decisis and the call that changes to the law of evidence “should occur only after a judicious Darwinian process.” Fisher v. Duckworth, 738 S.W.2d 810, 813 (Ky. 1987). But it is worth noting that Childers was decided by a divided Court. And while the author of this decision joined the majority in that case, we are also mindful that “the doctrine of stare decisis does not commit us to the sanctification of ancient or relatively recent fallacy.” Matheney v. Commonwealth, 191 S.W.3d 599, 604 (Ky. 2006) (quoting Morrow v. Commonwealth, 77 S.W.3d 558, 559 (Ky. 2002)). As we noted in Morrow, “respect for precedent demands proper reconsideration when we find sound legal reasons to question the correctness of our prior analysis.” 77 S.W.3d at 559.
The question, then, is whether we agree that the analysis in Childers was correct. After substantial reflection, we conclude that it was not completely so.
Nothing in the language of KRE 608 suggests that so long as a proponent does not attempt to prove the conduct involved in a misdemeanor conviction by extrinsic evidence, simple inquiry about that conduct should be unacceptable. KRE 608(b) says nothing about barring “inquiries” into specific behavior, and actually expressly allows them on cross-examination if the behavior reflects on the witness’s character for truthfulness. Instead, the rule only says that such conduct may not be proved by extrinsic evidence, except as allowed under KRE 609.
We held in Childers that this exception to the extrinsic-evidence limit meant that evidence of conduct resulting in a conviction could only be admissible—if at all—under KRE 609. Of course, KRE 609 only allows evidence of felonies, not misdemeanors, and even then only when the witness denies the conviction. We adopted this approach because it follows the model of the federal rules, which our current KRE 608 tracks.
Our KRE 609 differs substantially from its federal counterpart, however, which allows proof of misdemeanor convictions reflecting dishonesty and does not require a denial by the witness before extrinsic evidence of the conviction is admissible. We avoided this discrepancy in Childers by stating that our rules “are significantly similar to their federal counterparts” and that “the discrepancies which exist do not affect our analysis here” because “the thrust of the rules, especially as it concerns this issue, is the same.” Childers, 332 S.W.3d at 81 n.l. This was accurate in regard to convictions, but not as to conduct.
This case illustrates that the federal scheme differs substantially from our rules. The federal 608 and 609 offer a complete system for addressing specific conduct reflecting on dishonesty in a manner that avoids collateral matters while also allowing inquiry into a subject that is very probative of a witness’s truthfulness or dishonesty.
Federal Rule 609 allows extrinsic evidence of any criminal conviction where “establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement.” Fed. R. Evid. 609. Extrinsic proof of the conviction is allowed because it is the conclusive proof that the witness committed the dishonest act or said the false statement. It works as a sort of collateral estoppel on the issue of the witness’s dishonesty.
Federal Rule 608, like KRE 608, allows inquiry on cross-examination about specific instances of dishonest conduct. It avoids getting into collateral matters by not allowing impeachment by extrinsic evidence after the witness answers. Under this scheme, it makes sense to completely divide conduct that led to a conviction and conduct that did not, because it takes into account the whole of dishonest conduct.
But, as the federal advisory committee noted, “Effective cross-examination demands that some allowance be made for going into matters of this kind.” Fed. R. Evid. 608 Adv. Comm. Notes to Proposed Rules (1972). The only concern is avoiding the substantial possibilities of abuse presented by such collateral matters, which the limits on use of extrinsic evidence are intended to accomplish. Id. But when this Court bars any evidence of misdemeanor conduct that led to a conviction—even when it conclusively proves dishonest conduct—the ability to effectively cross-examine a witness is undermined.
And, it should be noted that this case has both prior felonies and misdemeanors that reflect dishonesty. The misdemeanors—giving a false name to a police officer—are arguably even more convincing than the felony crimes of possession of forged instruments.
Unlike the federal rules, KRE 608 and 609 do not offer a complete system for addressing dishonest conduct and what it says about a witness’s character for truthfulness. Indeed, based on the language in the rules, only 608 is aimed at conduct directly reflecting on truthfulness, but bars extrinsic ‘ proof of that conduct (such as by proof of convictions except as dealt with by KRE 609). KRE 609, on the other hand, is concerned with the fact of any felony conviction, which only indirectly illustrates character for dishonesty if at all.
Thus, unlike the federal rules, the Kentucky rules have a hole in them, as noted above. Our attempt in Childers to fill this hole by adopting the federal treatment of convicted and non-convicted behavior—that is, treating them as falling under mutually exclusive rules—serves only to undermine the ability to cross-examine.
Part of the problem is that it is tempting to conflate the conduct reflecting on dishonesty with a conviction for that conduct. But a conviction is not conduct, at least not by the witness who engaged in the conduct. Rather, the conviction is proof of the conduct, which in turn reflects on the person’s character for truthfulness. The conviction is allowed in some cases because it is the best proof that the person actually engaged in the dishonest conduct, such as when a felon denies he was convicted under KRE 609.
Courts rightfully avoid what amounts to a mini-trial within the trial about whether the person actually committed the dishonest act by carefully scrutinizing collateral evidence, a decision that is well within a trial court’s experience and purview. Rule 608 recognizes the trial court’s exercise of discretion, and substantially limits the inquiry with two safeguards: (1) no extrinsic evidence is allowed, and (2) the inquiry is limited to asking the witness (inquiry) about the conduct on cross-examination. (The inquiry is further limited to conduct that is “probative of truthfulness or untruthfulness.” KRE 608(b).)
Yet, the purpose of KRE 608(b) is to avoid over-collateralizing trials, not to prohibit proper impeachment or effective cross-examination. Thus, the better reading of KRE 608 and 609 would allow some inquiry as to the conduct underlying a criminal conviction, so long as the conduct is probative of truthfulness or untruthfulness. The only question is the limit on that inquiry.
KRE 608 lays out a substantive limit: the conduct must be probative of truthfulness or untruthfulness. As long as the conduct in question is so probative, whether it resulted in a criminal conviction or not, the court may, in its discretion, allow inquiry into it but not extrinsic proof of the conviction itself. KRE 608 also lays out two procedural safeguards: the conduct cannot be proved with extrinsic evidence, and may only be inquired into on cross-examination.
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This could suggest a conflict between the intent of KRE 608 and 609. For example, a defendant could ask a witness like the one in this case whether he had been convicted of a felony under KRE 609, to which he says “yes,” with the very next question being about the conduct involved in that felony under KRE 608 (for example, possession of counterfeit money). This would lead to the inference that the felony conviction was for possession of counterfeit money, thereby impliedly disclosing that the witness has been convicted of that offense in violation of KRE 609.
While this use of the rules shows how KRE 608 could be used to inquire into a subject that may not be inquired into under KRE 609, this does not mean that the inquiry is forbidden or unfair. The simple fact is that KRE 608 allows inquiry on cross-examination as to bad acts—with the limit being that the questioner is stuck with the answer, whatever it is. That such an inquiry may follow on the heels of a KRE 609 inquiry into whether the witness has a felony conviction, thereby leading the jury to believe that the bad act asked about was the basis for the felony conviction, is not barred by the rules. If this could mislead the jury—for example, if the bad act asked about under KRE 608 was not the basis for the conviction asked about under KRE 609—then a well-timed objection will allow the trial court to exercise its discretion to require handling the evidence in a fair and truthful manner.
On the other hand, if the witness denied the conviction when asked about it under KRE 609, and the defendant offered extrinsic proof of it, then KRE 608′s proscription on extrinsic proof would appear to be violated. But this concern is illusory, since KRE 608 specifically excepts proof of a conviction
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under KRE 609, which in turn allows proof of a felony conviction with extrinsic evidence, if the witness denies the conviction’s existence.
Ultimately, the scope of any inquiry under KRE 608 and 609 remains within the trial court’s discretion, subject of course to limits imposed by other rules, such as KRE 403. The trial court is always empowered to prevent misuse of these rules when necessary, possibly by separating the inquiries, clearly showing what is being asked about, or, if necessary, instructing the jury how it may consider the evidence. This is not an uncommon task for trial courts and counsel.
The final question is how this applies to Allen’s case. Allen was able to introduce the fact that Weaver had been convicted of a felony (the 25 counts of possession of a forged instrument). However, she was not allowed the choice to instead ask about the conduct that led to those convictions.
More importantly, Weaver’s other convictions at issue in this case were misdemeanors (two counts of giving a false name to police), and no proof of those was allowed. The conduct underlying those convictions tends to show that he had previous acts of deception—direct lies to police. That conduct was subject to inquiry under KRE 608(b), though not to proof by extrinsic evidence; the fact of the misdemeanor convictions themselves was not admissible under either KRE 608 or 609. While Allen could not ask about or otherwise show that this conduct led to a conviction, she should have been permitted to ask Weaver if he had previously lied to police.
This error, however, does not automatically require reversal. Like all evidentiary errors, it is subject to the harmless error rule, RCr 9.24. The test for harmlessness is whether the error substantially swayed the verdict. Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009). “The inquiry is not simply ‘whether there was enough [evidence] to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.’” Id. (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)) (alteration in original). We cannot say that the error in this case did not have a substantial influence on the verdict and, at the very least, we are left in grave doubt.
Before turning to the merits this claim, a preliminary matter must be addressed. Since Allen’s convictions are reversed for other reasons, some aspects of this claim should be only addressed because the issue it raises is likely to recur if she is retried. Terry v. Commonwealth, 153 S.W.3d 794, 797 (Ky. 2005). Additionally, the decision above allowing a criminal defendant in some circumstances to inquire about specific acts reflecting on truthfulness and for which the witness was convicted of a criminal act does not completely render this claim moot. The type of evidence covered by the decision above is pure character evidence, offered solely to assail the credibility of the witness. Such evidence has a limited use. Evidence of other crimes or bad acts offered for other purposes, as under KRE 404(b), “is called character for substantive use.” Robert G. Lawson, The Kentucky Evidence Law Handbook § 4.20[2], at 299 n.l (4th ed. 2003). Such evidence may be used differently and has fewer limitations on how it may be introduced than pure character evidence. Moreover, KRE 404(b) can be an alternative route for admitting evidence that is not admissible under other rules like KRE 608. See Blair v. Commonwealth, 144 S.W.3d 801, 810 (Ky. 2004).

This may seem in tension with the decision above allowing use of the forgery charge as evidence of character under KRE 608, but it is not. The distinction is that the evidence would be used for a different purpose here. The decision above would allow use of the forgery convictions as proof of character for truthfulness. Here, Allen seeks to use the convictions to show modus operandi, which in turn would show the identity of the person she claims actually signed for the truck (and committed forgery in the process). As just noted, the modus operandi rules require a great deal of specificity, whereas when we are concerned only with the issue of a witness’s credibility, the proof need only touch directly and substantially on credibility. Unlike modus operandi, this can be shown by crimes that are substantially different from what the witness is presently accused of. Indeed, when the prior crime is used solely to show character, there may not even be a current accusation against the witness other than that he is not telling the truth on the witness stand.
As to the claim that Weaver’s prior convictions for lying to police officers were admissible to show that he lied to the officers who investigated Allen, it suffices to say that such a showing is irrelevant. Whether Weaver lied in the course of the investigation was not at the core of Allen’s defense. She was more concerned with whether he lied on the stand at trial. But use of his prior bad acts to show that is not a substantive use; that is pure character evidence, which is not controlled by KRE 404(b), but by KRE 608 and 609 (and the decision above). Thus, Allen was not entitled to admit proof of those acts for substantive use under KRE 404(b)
Because Allen was entitled to cross-examine Curtis Weaver about his prior convictions involving dishonest acts under KRE 608(b), and the trial court disallowed the inquiry, her convictions are reversed.
MINTON, C.J., CONCURRING IN RESULT ONLY: I concur with the majority in result only because I disagree with the majority’s interpretation of Kentucky Rules of Evidence (KRE) 608(b) and 609. But because application of KRE 608(b) and 609 to this case violates Allen’s due process right to present a defense, I concur in the majority’s result—remanding the case for a new trial.
Respectfully, I disagree with that portion of the majority’s opinion in effect amending KRE 608 and 609. I would read the rules consistent with this Court’s recent opinion in Childers v. Commonwealth. KRE 609 exclusively regulates witness impeachment relating to a prior conviction, and KRE 608(b) deals exclusively with impeachment using conduct related to truthfulness that did not lead to a criminal conviction.


Sunday, May 5th, 2013

By David Kramer |

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Attorney’s fees that are recoverable pursuant to a statute or contract should be distinguished from a cost that may be recovered by a prevailing party under Rule 54.04 in a supplemental judgment. Therefore, if a prevailing party is entitled to attorney’s fees by statute or contract, the party should request that the award of attorney’s fees be made in the final judgment. See Harris v. Camp Taylor Fire Protection District, 303 S.W.3d 479, 481 (Ky. App. 2009).

The best practice in this regard is for the prevailing party, which is customarily the one to prepare a proposed judgment, circulate it to the other parties, and submit it to the trial court for entry, to make a motion for an award of attorney’s fees with supporting documentation before tendering the proposed final judgment to the trial court. If the motion is not ruled on by the time the proposed judgment is tendered, the prevailing party should leave a blank line in the judgment for the amount of attorney’s fees that the court might award. If the attorney’s fees are not included in the final judgment, the prevailing party with a claim for recovery of attorney’s fees by statute or contract may make a motion to alter, amend, or vacate the final judgment within 10 days pursuant to Rule 59.05. If no steps are taken within 30 days after entry of the final judgment that does not include an award of recoverable attorney’s fees, the trial court loses jurisdiction to award fees. Id.

Note: The foregoing post includes commentary reprinted from the forthcoming 2013 supplement to Rules of Civil Procedure Annotated, 6th ed. (Vols. 6 & 7, Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2013 Thomson Reuters. For more information about this publication please visit

David Kramer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

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Florida court rules cellphone search without a warrant is unconstitutional

Friday, May 3rd, 2013

Published May 02, 2013
Associated Press
TALLAHASSEE, Fla. – The Florida Supreme Court on Thursday ruled that a police search of an arrested person’s mobile phone without a warrant is unconstitutional.
The court ruled 7-2 in a case out of Jacksonville, overruling the 1st District Court of Appeals.
But the majority opinion, penned by Justice R. Fred Lewis, noted it applies specifically to searches after the cellphone has been “separated from the person arrested.”
“Our decision is narrowly limited to the legal question and facts with which we were presented, and we are confident that law enforcement will understand the limited scope of our holding,” it said.
Officers rightly took the cellphone of the defendant, Cedric Smallwood, while he was being detained in the back of a patrol car, the majority said.
But “a warrant was required before the information, data, and content of the cellphone could be accessed and searched,” according to its opinion.
The dissenters, Chief Justice Ricky Polston and Justice Charles T. Canady, noted that four federal appeals courts have ruled that searching a cellphone found on someone arrested is “within the proper scope of a search (after an) arrest.”
“The contrary view adopted by the majority here holds the potential to work much mischief in Fourth Amendment law,” according to the dissent. The Fourth Amendment protects against unreasonable searches and seizures.
The majority’s ruling was hailed on both sides of the political spectrum in Florida.
“The intimate details of our lives are on our cellphones, including matters that go far beyond what the police may be investigating and have any interest in,” said Howard Simon, executive director of the American Civil Liberties Union of Florida.
“The police should not have the right to rummage through our lives without limits set by a court as specified in a warrant,” Simon added.
State Sen. Joe Negron, a Stuart Republican, called it “an affirmation of the right to privacy.” This year, Negron shepherded a bill — later signed into law by Gov. Rick Scott — that limits Florida law enforcement agencies’ use of drone aircraft.
“Our state constitution has a specific provision in it that protects privacy,” he said. “I would support a state standard being higher than the minimum requirements.”
Two bills (HB 797 and SB 846) submitted this legislative session sought to put into law that cellphones couldn’t be searched without a warrant. They both passed through committees, but didn’t make it to either floor.
Smallwood was arrested and charged in a January 2008 convenience store robbery.
A police officer took his cellphone and went through the photos on it, finding pictures of Smallwood and his fiancee holding a bundle of cash and one of a “black and silver handgun next to a fanned-out stack of money,” the opinion said.
The defense argued that although prosecutors later got a warrant before the trial to use the photos as evidence, Smallwood had a reasonable expectation of privacy in the information stored on his cellphone.
The police “search was not conducted for the purpose of preserving evidence,” the court said, nor could Smallwood have used the phone as a weapon.
Smallwood was later convicted on charges of robbery and possession of a firearm by a convicted felon. He was sentenced to a total of 65 years.
“Despite the presence of evidence of guilt, we have no choice but to hold that Smallwood is entitled to a new trial because there is no reasonable possibility that the improperly admitted photos did not contribute to his conviction,” the court wrote.
The U.S. Supreme Court has ruled that searches at the time of arrest are OK without a warrant, “even if it is unlikely that the arrestee has a weapon or evidence related to the crime on his person,” the court said.
But that was before the advent of mobile phones, many like “interactive, computer-like devices,” and not “static, non-interactive container(s),” the Florida Supreme Court opinion said.
“The most private and secret personal information and data is contained in or accessed through small portable electronic devices,” the opinion said. “Indeed, many people now store documents on their equipment that also operates as a phone that, twenty years ago, were stored and located only in home offices, in safes, or on home computers….
The case is Smallwood v. Florida, No. SC11-1130.

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Wednesday, May 1st, 2013

New Kentucky Supreme Court Ruling May Increase Landlord’s Liability For Dog Bite By Tenant’s Dog While “On or About” Landlord’s PropertyBy David Kramer |
31.In a very recent decision, Benningfield v. Zinsmeister, — S.W.3d —, 2009-SC-000660-DG (6/25/12), the Kentucky Supreme Court interpreted Kentucky statutes as permitting a landlord to be held liable when a tenant’s dog attacks someone on or about the leased premises. In a plurality opinion, the Court determined that the landlord can be considered the statutory owner of the dog under KRS 258.095(5) if the landlord has permitted the dog to be kept on the leased premises.

In Benningfield, a child was attacked by a tenant’s Rottweiler on a sidewalk across the street from the leased premises. There was evidence the landlord had previously given permission for the tenants to keep the dog. The child’s parent sued both the tenant who owned the dog and the landlord. The trial court dismissed the claim, holding that the landlord could not be held liable because the attack occurred off the leased premises. The Court of Appeals agreed, adding that the landlord would also have to know of the dog’s dangerous propensities in order to be liable for the attack.

The Supreme Court granted discretionary review and focused on the language of KRS 258.235(4) and KRS 258.095(5) in order to determine the landlord’s liability. The dog-bite liability statute, KRS 258.235(4), creates liability for the owner of a dog who causes damage to person, property, or livestock. KRS 258.095(5) defines a dog owner as “every person having a right of property in the dog and every person who keeps or harbors the dog, or has it in his care, or permits it to remain on or about the premises owned or occupied by him.”

The Supreme Court in Benningfield explained that under these statutes a landlord is an owner of a tenant’s dog on the leased property when he or she allows the tenant to keep the dog on or about the property. In order to be considered “on or about” the property, the attack must occur either on the leased premises or within immediate physical reach (e.g., a sidewalk directly abutting the leased property). Because the attack in Benningfield did not occur on or immediately adjacent to the leased premises, the Supreme Court upheld the dismissal of the claim against the landlord.

The Court briefly discussed the question whether a landlord’s liability can be affected by the common-law “one free bite” rule, under which a dog’s owner is not liable for a dog-bite injury unless he or she is aware of the dog’s propensity to cause harm (e.g., because of a prior dog bite). If the owner is aware of the dog’s dangerous propensities, the owner is strictly liable for any injuries the dog causes others. In determining when this rule applies, the Kentucky Court of Appeals in a 2006 unpublished opinion said that “[KRS 258.235(4)] imposes liability only in circumstances where the owner could reasonably expect a plaintiff to be in close proximity to the dog.” Otherwise, the Court of Appeals stated the common-law rule of “one free bite” prevails. Adkins v. Johnston, 2006 WL 3759549 (Ky. App. 2006). The plurality opinion in Benningfield observed that one seeking recovery for a dog bite may proceed under either the statute or common law, while stating that the statute had modified the common law and made it “simpler” for plaintiffs to establish liability.

As noted above, Benningfield was a plurality (i.e., less than a majority) opinion, meaning it is not necessarily binding precedent on future courts. Also, the opinion is not yet final, but was designated for publication in the South Western Reporter. Cases that are not final may not be cited as authority in Kentucky. Unless and until the statutes are changed or interpreted differently by the Kentucky Supreme Court, landlords should consider revising their leases, reviewing their insurance coverage, and/or adjusting their property management practices to protect against or avoid liability for tenants’ dogs.


Wednesday, May 1st, 2013

By Rebecca Kinman, LawReaders Customer Service Rep.
April 30, 2013
I knew George Jones. Not by my own accord, in the beginning. He was a customer of my father. Through that, George and I became good friends.

I am fortunate to have been his friend. More than that it was a joy to know him.

Everyone knows of his accomplishments, his struggles and, when it’s all said and done, his greatness.

What I can say with sincere conviction, from my personal experience, gained through association with him outside the public spotlight, is that George Jones was genuinely kind. He was impeccably courteous and polite. A true gentleman. He was gracious enough to allow me to have my wedding there in 2005. He renovated his barn so that my reception with be even more beautiful. I will forever be grateful.

In my presence, away from the grinding pressure of the limelight, he was always generous and good-natured. I know he was generous and kind when no one watched and no one reported.

He was loyal, probably to a fault. But most importantly he had the grace and dignity to make a person feel comfortable, despite his lofty status in the public eye. To George, a friend was a friend. And a friend was an equal. Both equal and precious.

He always called me “darlin”. I’m sure he called many younger ladies “darlin”. Nevertheless, to be called “darlin” by a man of the class of George Jones is a cherished memory to me. I miss him already and forever.