the Kentucky Supreme Court expanded the right of counsel to inquire of a trial witness concerning facts underlying certain criminal convictions.

In Allen v. Com., 395 S.W.3d 451 (Ky. 2013), the Kentucky Supreme Court expanded the right of counsel to inquire of a trial witness concerning facts underlying certain criminal convictions. In a 5-2 opinion by Justice Noble, the Court held that KRE 608(b) and 609 should be read as being complementary of each other, not mutually exclusive, so that a witness who has been convicted of either a felony (which is admissible under KRE 609) or a misdemeanor (which is not admissible under KRE 609) may separately be inquired of concerning the underlying facts if the crime involved dishonesty. In doing so the Court rejected the federal courts’ approach to the pertinent rules and overruled its own prior holding in Childers v. Com., 332 S.W.3d 64 (Ky. 2010).

While Allen was a criminal case, the Rules of Evidence at issue are equally applicable in civil actions. Thus, pursuant to KRE 609, counsel in a civil or criminal trial may now ask a witness whether he or she has ever been convicted of any felony and may prove the conviction by extrinsic evidence if the witness does not admit to same. In addition, if the witness has been convicted of any crime, whether a felony or a misdemeanor, that involved dishonest conduct, counsel may, subject to the trial court’s discretion, question the witness concerning the underlying dishonest conduct, under Allen and KRE 608(b). However, in that event, counsel may not go further and impeach the witness’s answer to that question with extrinsic evidence. Nor may counsel introduce the misdemeanor conviction itself for impeachment.

Even though extrinsic evidence is not permitted to prove dishonest conduct under KRE 608(b), the witness’s false denial of such conduct could have ethical implications for opposing counsel if counsel is aware of facts (e.g., a prior related misdemeanor conviction for the conduct at issue) that would contradict the witness’s testimony. In that event, Kentucky Supreme Court Rules relating to duties of candor to the tribunal and of fairness to opposing parties may be implicated.

Finally, where the witness has a prior felony conviction but is also being impeached with questioning about a prior dishonest act that is not related to the felony, the trial court should exercise discretion to see that the questioning on these separate points does not mislead the jury by inducing them to believe that the unrelated conduct resulted in the felony conviction.

The holding in Allen is an important extension of the Kentucky Rules of Evidence relating to impeachment and one with which all Kentucky civil litigators and criminal defense lawyers should be familiar.

David Kramer is a Partner in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky.

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