Kentucky's rule on evidence law turns on a feature the national template does not capture: Kentucky evidence practice is organized under the Kentucky Rules of Evidence. Relevance starts at Ky. R. Evid. 401, 403; hearsay starts at Ky. R. Evid. 801, 802. The controlling authority is Kentucky Rules of Evidence. Authenticity is a separate fight under Ky. R. Evid. 901, 902. Depositions at trial: Ky. R. Civ. P. 32 governs civil deposition use at trial. Ky. R. Crim. P. 7.24 addresses criminal discovery; deposition testimony at trial is uncommon but prior testimony may qualify under Ky. R. Evid. 804(b)(1).
Contents
- General standards of admissibility
- Character evidence
- Hearsay: start with the definition
- Party admissions
- Business records
- Important hearsay exceptions that do not require unavailability
- Declarant unavailable
- Dying declarations
- Medical diagnosis or treatment statements
- Use of depositions at trial
- Authenticity: why it matters and how to prove it
- Practice checklist
- Frequently asked questions
Worked example under Kentucky law
The illustration below uses only rules already stated for Kentucky. It is a research hypothetical, not a prediction of what a court will do.
A lawyer in Kentucky wants to offer a medical record, a party email, and a statement the declarant made while believing death was imminent.
- Clear relevance and unfair prejudice under Ky. R. Evid. 401, 403.
- If the email is the opposing party's, test Ky. R. Evid. 801(d)(2) before the hearsay definition in Ky. R. Evid. 801, 802.
- For the medical record, lay the business-records foundation in Ky. R. Evid. 803(6) and the treatment purpose in Ky. R. Evid. 803(4).
- For the deathbed statement, meet Ky. R. Evid. 804(b)(2), then authenticate every exhibit under Ky. R. Evid. 901, 902.
Kentucky keeps hearsay, character, and authenticity on different rules inside the Kentucky Rules of Evidence. Winning one does not win the others.
General standards of admissibility
Kentucky starts every evidence dispute with relevance and unfair prejudice. Under Ky. R. Evid. 401, 403, evidence is relevant when it has any tendency to make a fact of consequence more or less probable, and relevant evidence is still excluded when its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Preliminary questions of admissibility are for the court; conditional relevance and limited-purpose instructions keep otherwise-usable proof from becoming a Trojan horse for propensity or truth-of-the-matter use.
Kentucky retains localized provisions on subsequent remedial measures and insurance references. Appellate courts apply Palmore v. United States abuse-of-discretion review.
Practice tip: articulate the theory of relevance in one sentence before citing the exception. Lawyers who lead with "it's a business record" without explaining what fact the record proves often lose the 403 balance even when the hearsay foundation is clean.
Character evidence
Character evidence in Kentucky is governed by Ky. R. Evid. 404, 405. The default rule is familiar: evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. The same body of law then carves out the classic exceptions — essential-element character, accused-opens-the-door reputation or opinion, and other-acts evidence offered for a non-propensity purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.
Other-acts notice, 403 balancing, and limiting instructions do most of the real work. In criminal cases, prosecutors who dump prior misconduct without a specific non-propensity theory invite reversal; defense counsel who open the door to good-character testimony without anticipating rebuttal create the very propensity inference the rules were designed to police.
Kentucky character-evidence opinions
Kalton ADKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee
Kalton ADKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 2003 Ky. LEXIS 13 (2003)
…” Appellant characterizes all of this testimony as improper character evidence admitted in violation of KRE 404(b). We disagree. KRE 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible: (1) If offered for some other purpose, such as proof o…
Practitioners open Kalton ADKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee when Kentucky character evidence turns on the distinction in this sentence: "Appellant characterizes all of this testimony as improper character evidence admitted in violation of KRE 404(b). We disagree." Do not lift it out of the facts the court was deciding.
Richard Adam SHERROAN, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee
Richard Adam SHERROAN, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee, 2004 Ky. LEXIS 190 (2004)
…. We perceive no abuse of discretion in that conclusion. C. Character evidence. Appellant claims that the trial court erred by excluding evidence of his past adverse reactions to the loss of friends and loved ones. Appellant’s mother offered the following testimony by way of avowal. Q: Lisa, I want to go back to what we were talking about earlier, with uh Ricky’s behavior uh co…
Richard Adam SHERROAN, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee is worth reading on Kentucky character evidence because the court put the point in its own words: "We perceive no abuse of discretion in that conclusion. C. Character evidence. Appellant claims that the trial court erred by excluding evidence of his past adverse reactions to the loss of friends and loved ones. Appellant’s mother offered the following testimony by way of avowal." Use that passage as the starting point, then read the facts that precede it.
Jerel PURCELL, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee
Jerel PURCELL, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee, 2004 Ky. LEXIS 286 (2004)
…otograph to satisfy an interest "in his sex," it was either character evidence or evidence of motive, which will also be discussed infra. B. To impeach credibility. A prosecutor cannot make improper inquiries about collateral matters on cross-examination and then introduce otherwise inadmissible evidence in rebuttal under the guise of impeachment. Stansbury v. United States, 21…
Jerel PURCELL, Appellant, v. COMMONWEALTH OF KENTUCKY, Appellee is worth reading on Kentucky character evidence because the court put the point in its own words: "B. To impeach credibility. A prosecutor cannot make improper inquiries about collateral matters on cross-examination and then introduce otherwise inadmissible evidence in rebuttal under the guise of impeachment. Stansbury v." Use that passage as the starting point, then read the facts that precede it.
Michael McQUEEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee
Michael McQUEEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 2011 Ky. LEXIS 75 (2011)
…Hall to the extent that they conflict with this opinion. C. Character Evidence McQueen next argues that the trial court deprived him of a fair trial when it overruled his objection and admitted unduly prejudicial character evidence against him. As stated above, Sweeney testified that he visited McQueen’s trailer two days before the shooting and observed McQueen order the victim…
Kentucky opinions such as Michael McQUEEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee are cited where character evidence is disputed. The court stated: "Hall to the extent that they conflict with this opinion. C. Character Evidence McQueen next argues that the trial court deprived him of a fair trial when it overruled his objection and admitted unduly prejudicial character evidence against him." That is the language to brief; the rest of the decision supplies the procedural posture.
Michael JOHNSON v. COMMONWEALTH of Kentucky — Wintersheimer, J., dissenting
…operly applied KRE 404(a)(1) in limiting Johnson’s offer of character evidence to testimony regarding his general reputation for truthfulness and veracity in the community. Under all the circumstances, I believe the judgment of conviction should be affirmed.
Practitioners open Michael JOHNSON v. COMMONWEALTH of Kentucky — Wintersheimer, J., dissenting when Kentucky character evidence turns on the distinction in this sentence: "KRE 404(a)(1) in limiting Johnson’s offer of character evidence to testimony regarding his general reputation for truthfulness and veracity in the community. Under all the circumstances, I believe the judgment of conviction should be affirmed." Do not lift it out of the facts the court was deciding.
Brenda SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee — Stephens, J., dissenting
…n of this testimony clearly results in the admission of bad character evidence when character has not been put at issue. Barnett v. Commonwealth, Ky., 763 S.W.2d 119 (1988). I also find that, even if one could hold that the door had been opened to the admission of this evidence, the repeated questions asked by the Commonwealth regarding Brenda’s sexual preferences and sexual re…
Kentucky opinions such as Brenda SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee — Stephens, J., dissenting are cited where character evidence is disputed. The court stated: "Barnett v. Commonwealth, Ky., 763 S.W.2d 119 (1988)." That is the language to brief; the rest of the decision supplies the procedural posture.
George H. BURCHETT, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee — Cooper, J., dissenting
…its on grounds that the statements were either inadmissible character evidence, KRE 404(a), or inadmissible evidence of other crimes, wrongs, or acts, KRE 404(b). In fact, as correctly noted in the plurality opinion, ante, Appellant’s admissions constituted neither character evidence nor evidence of other crimes, wrongs, or acts, but evidence of habit. In view of the laboratory…
On character evidence, George H. BURCHETT, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee — Cooper, J., dissenting speaks to the Kentucky dispute in this passage: "KRE 404(a), or inadmissible evidence of other crimes, wrongs, or acts, KRE 404(b). In fact, as correctly noted in the plurality opinion, ante, Appellant’s admissions constituted neither character evidence nor evidence of other crimes, wrongs, or acts, but evidence of habit." The surrounding opinion shows how the court applied that language to the record.
COMMONWEALTH OF KENTUCKY, Appellant/Cross-Appellee, v. Christopher Ray HIGGS, Appellee/Cross-Appellant
…ove that element. Despite having some of the appearances of character evidence, proof offered to show a fear of the victim by the accused (and relevant for that purpose) is not *892 character evidence, i.e., it is not used to show a trait of character to support an inference of conduct in accordance therewith. It does not, therefore, open the door for the prosecution to introdu…
Practitioners open COMMONWEALTH OF KENTUCKY, Appellant/Cross-Appellee, v. Christopher Ray HIGGS, Appellee/Cross-Appellant when Kentucky character evidence turns on the distinction in this sentence: "Despite having some of the appearances of character evidence, proof offered to show a fear of the victim by the accused (and relevant for that purpose) is not *892 character evidence, i.e." Do not lift it out of the facts the court was deciding.
Hearsay: start with the definition
Most hearsay objections in Kentucky are won or lost on the definition, not on an exception. Under Ky. R. Evid. 801, 802, hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Non-hearsay purposes — verbal acts, effect on the listener, notice, circumstantial evidence of state of mind, and impeachment — remain available when the proponent can articulate them without asking the jury to believe the declarant.
Layered hearsay (hearsay within hearsay) requires an exception or exclusion for each layer. Machine-generated data and non-assertive conduct sit outside the hearsay definition in FRE-aligned jurisdictions, but they still need authenticity and, often, expert or business-records foundations.
Kentucky hearsay opinions
David BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee
David BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 1994 Ky. LEXIS 36 (1994)
…n could the trial judge have possibly ruled on whether this hearsay medical evidence, once authenticated, could survive the second hurdle of admissibility, a determination of whether the document contains sufficient indicia of reliability under Drumm. B. Hearsay Medical Testimony In Drumm v. Commonwealth, Ky., 783 S.W.2d 380 (1990), this Court adopted FRE 803(4), now codified i…
On hearsay, David BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee speaks to the Kentucky dispute in this passage: "Drumm. B. Hearsay Medical Testimony In Drumm v. Commonwealth, Ky., 783 S.W." The surrounding opinion shows how the court applied that language to the record.
Corbett Charles SLAVEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee
Corbett Charles SLAVEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 1997 Ky. LEXIS 161 (1997)
…up and put it back in his own pocket. I. SPOUSAL PRIVILEGE/HEARSAY At trial, both Appellant and his wife, Becky Slaven, invoked the spousal privilege enunciated in KRE 504. Although Becky did not testify at trial, numerous out-of-court statements made by her to other witnesses were admitted into evidence. Appellant identifies fourteen such statements which he asserts should ha…
On hearsay, Corbett Charles SLAVEN, Appellant, v. COMMONWEALTH of Kentucky, Appellee speaks to the Kentucky dispute in this passage: "I. SPOUSAL PRIVILEGE/HEARSAY At trial, both Appellant and his wife, Becky Slaven, invoked the spousal privilege enunciated in KRE 504. Although Becky did not testify at trial, numerous out-of-court statements made by her to other witnesses were admitted into evidence." The surrounding opinion shows how the court applied that language to the record.
Steven BRAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee
Steven BRAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 2002 Ky. LEXIS 19 (2002)
…ld not have been admitted because it contained inadmissible hearsay. Appellant also argues that the motion for restraining order and the order itself are inadmissible because they reveal inadmissible prior bad acts. The motion for restraining order was filed on June 3, 1981, one year and five months prior to the crimes and contained allegations of physical abuse. The affidavit…
On hearsay, Steven BRAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee speaks to the Kentucky dispute in this passage: "Appellant also argues that the motion for restraining order and the order itself are inadmissible because they reveal inadmissible prior bad acts." The surrounding opinion shows how the court applied that language to the record.
Bruce DRUMM, Appellant, v. COMMONWEALTH of Kentucky, Appellee; Karen DRUMM, Appellant, v. COMMONWEALTH of Kentucky
…one of the traditional reasons for making exceptions to the hearsay rule. Further, although it contemplates a preliminary hearing and findings before a child victim’s out-of-court statements are admitted, the record before us is devoid of such preliminary hearing and it is at best debatable whether the trial court made all of the findings specified in the statute. Numerous obje…
Practitioners open Bruce DRUMM, Appellant, v. COMMONWEALTH of Kentucky, Appellee; Karen DRUMM, Appellant, v. COMMONWEALTH of Kentucky when Kentucky hearsay turns on the distinction in this sentence: "one of the traditional reasons for making exceptions to the hearsay rule. Further, although it contemplates a preliminary hearing and findings before a child victim’s out-of-court statements are admitted, the record before us is devoid of such preliminary hearing and it is at bes" Do not lift it out of the facts the court was deciding.
Terry SOUDER, Appellant, v. COMMONWEALTH of Kentucky, Appellee
Terry SOUDER, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 1986 Ky. LEXIS 303 (1986)
….” The appellant claims that this evidence was inadmissible hearsay, but even if admissible it would add nothing proving the offense of sodomy. The appellant’s Motion for Directed Verdict on the charge of first-degree sodomy should have been sustained. Similarly, there is no evidence to prove an essential element of first-degree assault, namely, “serious physical injury.” KRS 5…
Practitioners open Terry SOUDER, Appellant, v. COMMONWEALTH of Kentucky, Appellee when Kentucky hearsay turns on the distinction in this sentence: "The appellant claims that this evidence was inadmissible hearsay, but even if admissible it would add nothing proving the offense of sodomy. The appellant’s Motion for Directed Verdict on the charge of first-degree sodomy should have been sustained." Do not lift it out of the facts the court was deciding.
Party admissions
Statements of an opposing party are among the most important routes around the hearsay bar. Kentucky treats them under Ky. R. Evid. 801(d)(2). Nothing about the statement need be against interest, contemporaneous, or based on personal knowledge — the theory is adversarial, not reliability-based. A party cannot complain that his own words are unreliable when offered against him.
Scope questions dominate practice: the party's own statement; adopted statements (including silence in circumstances where a reasonable person would deny); statements by authorized speakers; agent or employee statements on matters within the scope of the relationship; and, in criminal conspiracy cases, coconspirator statements during and in furtherance of the conspiracy. A defendant generally cannot introduce his own exculpatory out-of-court statement as a "party admission" against himself — the rule runs one way.
Kentucky party-admission opinions
Phillip L. BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee
Phillip L. BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 2010 Ky. LEXIS 148 (2010)
…Brown's numerous claims of evidentiary error. As errors of admission, he challenges the Commonwealth's use of his testimony from the previous trial, its DNA evidence, its cross-examination of him concerning his numerous tattoos, its use of depictions of the crime scene and of autopsy photographs, and its introduction of hearsay statements during the testimonies of Stephanie Mc…
On party admissions, Phillip L. BROWN, Appellant, v. COMMONWEALTH of Kentucky, Appellee speaks to the Kentucky dispute in this passage: "Brown's numerous claims of evidentiary error." The surrounding opinion shows how the court applied that language to the record.
TEN BROECK DUPONT, INC. (d/B/A Ten Broeck Hospital), Appellant, v. Artemecia BROOKS, Appellee
…gent than in the original rule; it raises the threshold for admission by requiring that the probative value of the evidence substantially outweigh the specified dangers. Finally, the Rule 412 test puts “harm to the victim” on the scale in addition to prejudice to the parties. Fed.R.Evid. 412 advisory committee’s note (emphasis added). Prior to the 2003 amendment expanding cover…
TEN BROECK DUPONT, INC. (d/B/A Ten Broeck Hospital), Appellant, v. Artemecia BROOKS, Appellee is worth reading on Kentucky party admissions because the court put the point in its own words: "Finally, the Rule 412 test puts “harm to the victim” on the scale in addition to prejudice to the parties. Fed.R.Evid. 412 advisory committee’s note (emphasis added)." Use that passage as the starting point, then read the facts that precede it.
Kenneth Ray NOEL, Appellant, v. COMMONWEALTH of Kentucky, Appellee
Kenneth Ray NOEL, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 2002 Ky. LEXIS 130 (2002)
…Michie 1993). For an out-of-court statement to qualify for admission under KRE 803(2), “it must appear that the de-clarant’s condition at the time was such that the statement was spontaneous, excited, or impulsive rather than the product of reflection and deliberation.” United States v. Iron Shell, 633 F.2d 77, 86 (8th Cir.1980) (gathering eases), cert. denied, 450 U.S. 1001,…
Practitioners open Kenneth Ray NOEL, Appellant, v. COMMONWEALTH of Kentucky, Appellee when Kentucky party admissions turns on the distinction in this sentence: "Michie 1993). For an out-of-court statement to qualify for admission under KRE 803(2), “it must appear that the de-clarant’s condition at the time was such that the statement was spontaneous, excited, or impulsive rather than the product of reflection and deliberation." Do not lift it out of the facts the court was deciding.
Michael David BARTH, Appellant v. COMMONWEALTH OF KENTUCKY, Appellee; And Peter John BARTH, IV — Johnstone, J
…sion of a non-testifying co-defendant in a joint trial. The admission into evidence of a party’s own statement against that party is not excluded by the hearsay rule. KRE 801A. But when used against a co-defendant as substantive evidence, it remains inadmissible hearsay and its introduction into evidence as such violates the defendant’s constitutional right to confront the witn…
Kentucky opinions such as Michael David BARTH, Appellant v. COMMONWEALTH OF KENTUCKY, Appellee; And Peter John BARTH, IV — Johnstone, J are cited where party admissions is disputed. The court stated: "The admission into evidence of a party’s own statement against that party is not excluded by the hearsay rule. KRE 801A." That is the language to brief; the rest of the decision supplies the procedural posture.
Sue K. RABOVSKY, Appellant, v. COMMONWEALTH of Kentucky, Appellee
Sue K. RABOVSKY, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 1998 Ky. LEXIS 28 (1998)
…re serious and ultimately fatal problem with respect to the admission of the blood test results is the total failure of the Commonwealth to establish a chain of custody of the blood samples. This issue relates to the integrity of the evidence and is an integral part of the authentication requirement of KRE 901 (a). The purpose of requiring proof of the chain of custody of a blo…
Practitioners open Sue K. RABOVSKY, Appellant, v. COMMONWEALTH of Kentucky, Appellee when Kentucky party admissions turns on the distinction in this sentence: "Commonwealth to establish a chain of custody of the blood samples. This issue relates to the integrity of the evidence and is an integral part of the authentication requirement of KRE 901 (a)." Do not lift it out of the facts the court was deciding.
Business records
The business-records exception under Ky. R. Evid. 803(6) is the everyday path for medical charts, employment files, bank statements, and maintenance logs. The foundation requires a record made at or near the time by — or from information transmitted by — someone with knowledge; kept in the course of a regularly conducted activity; and made as a regular practice. A custodian or other qualified witness (or a qualifying certification where the jurisdiction allows it) lays the foundation. The opponent may still attack lack of trustworthiness when the source or method of preparation indicates unreliability — litigation-driven reports are the classic failure mode.
Do not confuse authenticity with the business-records exception. You still need to show the exhibit is what you claim it is; the hearsay exception then answers why the out-of-court assertions inside it may be considered for their truth.
Kentucky business-records opinions
David BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee
David BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 1994 Ky. LEXIS 36 (1994)
…s, and they should be admitted as an exception provided for business records pursuant to KRE 803(6). This report consists of two pages of laboratory results and one page which is a detailed examination record largely typewritten from the dictation of the physician and partly in the handwriting of the physician. It contains a history of the alleged sex abuse, including an accusa…
David BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee is worth reading on Kentucky business records because the court put the point in its own words: "KRE 803(6). This report consists of two pages of laboratory results and one page which is a detailed examination record largely typewritten from the dictation of the physician and partly in the handwriting of the physician." Use that passage as the starting point, then read the facts that precede it.
William Vernon MATTHEWS, Appellant, v. COMMONWEALTH of Kentucky, Appellee — Cooper, J., concurring
…sed by Appellant is, of course, resolved by KRE 803(6), the business records exception to the hearsay rule. Since Appellant did not raise the authentication issue concerning which the majority finds error, it was not preserved. for appellate review. Gabow v. Commonwealth, 34 S.W.3d 63, 75 (Ky.2000) (“Where a party specifies his grounds for an objection at trial, he cannot prese…
Practitioners open William Vernon MATTHEWS, Appellant, v. COMMONWEALTH of Kentucky, Appellee — Cooper, J., concurring when Kentucky business records turns on the distinction in this sentence: "Appellant is, of course, resolved by KRE 803(6), the business records exception to the hearsay rule. Since Appellant did not raise the authentication issue concerning which the majority finds error, it was not preserved. for appellate review. Gabow v. Commonwealth, 34 S.W." Do not lift it out of the facts the court was deciding.
Steven BRAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee
Steven BRAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 2002 Ky. LEXIS 19 (2002)
…of the affidavit. The trial court initially ruled that the business records exception to the hearsay rule, KRE 803(6),[2] permitted the admission of the affidavit, and also held it admissible under *379 KRE 804(b)(1)[3] as former testimony. While neither party has brought it to our attention, we must address Barnes v. Commonwealth,[4] a case bearing close similarity to the cas…
Steven BRAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee is worth reading on Kentucky business records because the court put the point in its own words: "The trial court initially ruled that the business records exception to the hearsay rule, KRE 803(6),[2] permitted the admission of the affidavit, and also held it admissible under *379 KRE 804(b)(1)[3] as former testimony." Use that passage as the starting point, then read the facts that precede it.
Terry SOUDER, Appellant, v. COMMONWEALTH of Kentucky, Appellee
Terry SOUDER, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 1986 Ky. LEXIS 303 (1986)
…ts made for the purpose of receiving medical treatment, and business records (including medical records) kept in the regular course of business. However, each of the various exceptions to the hearsay rules are defined and circumscribed with conditions, limitations and qualifications which are intended to provide the testimony with the same quality and reliability that would exi…
Practitioners open Terry SOUDER, Appellant, v. COMMONWEALTH of Kentucky, Appellee when Kentucky business records turns on the distinction in this sentence: "ts made for the purpose of receiving medical treatment, and business records (including medical records) kept in the regular course of business. However, each of the various exceptions to the hearsay rules are defined and circumscribed with conditions, limitations and qualificati" Do not lift it out of the facts the court was deciding.
Sue K. RABOVSKY, Appellant, v. COMMONWEALTH of Kentucky, Appellee
Sue K. RABOVSKY, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 1998 Ky. LEXIS 28 (1998)
…n Buckler to address the legal principle that an entry in a business record is not admissible simply because it is in a business record, if that entry would be inadmissible for another reason. Prater v. Cabinet for Human Resources, Ky., 954 S.W.2d 954, 958 (1997); Alexander v. Commonwealth, Ky., 862 S.W.2d 856, 862 (1993). Although KRE 803 (6), the successor to the common law s…
Practitioners open Sue K. RABOVSKY, Appellant, v. COMMONWEALTH of Kentucky, Appellee when Kentucky business records turns on the distinction in this sentence: "Buckler to address the legal principle that an entry in a business record is not admissible simply because it is in a business record, if that entry would be inadmissible for another reason. Prater v. Cabinet for Human Resources, Ky., 954 S.W.2d 954, 958 (1997); Alexander v." Do not lift it out of the facts the court was deciding.
Important hearsay exceptions that do not require unavailability
Three present-sense and mental-state exceptions carry most of the remaining traffic in Kentucky trial practice.
Excited utterance — Ky. R. Evid. 803(2). A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Timing is elastic; composure defeats the exception even minutes after the event, while visible distress can preserve it for hours.
Present sense impression — Ky. R. Evid. 803(1). A statement describing or explaining an event or condition made while or immediately after the declarant perceived it. Contemporaneity is strict — seconds and minutes, not hours — and excitement is not required.
Then-existing mental, emotional, or physical condition — Ky. R. Evid. 803(3). Statements of then-existing state of mind (including intent and plan) come in; statements of memory or belief offered to prove the fact remembered generally do not. Intent-to-meet-another-person cases remain the hardest applications.
Declarant unavailable
When the declarant is unavailable under Ky. R. Evid. 804(a), Kentucky opens a second suite of exceptions. Unavailability typically includes privilege, refusal to testify despite court order, lack of memory, death or then-existing infirmity, and absence despite reasonable efforts to procure attendance. The proponent bears the burden of proving unavailability with specific facts — a bare assertion that the witness "could not be found" is not enough.
Former testimony under Ky. R. Evid. 804(b)(1) is the workhorse once unavailability is shown: testimony given as a witness at a trial, hearing, or lawful deposition, offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect. Criminal confrontation analysis runs in parallel and is not satisfied merely because a hearsay exception applies.
Dying declarations
Dying declarations under Ky. R. Evid. 804(b)(2) remain a narrow but decisive exception in homicide and, in many jurisdictions, civil cases involving the cause or circumstances of what the declarant believed to be impending death. The foundational showing is the declarant's belief that death was imminent — not that death in fact followed within any particular time — plus a statement concerning the cause or circumstances of what the declarant believed to be the impending death. Courts police coaching and narrative expansions aggressively.
Kentucky dying-declaration opinions
Postell v. Commonwealth
Postell v. Commonwealth, 174 Ky. 272 (1917)
…t the close of the testimony of the witness who told of the dying declaration, this admonition or instruction: “The court will say to the jury that you will consider the evidence of Mr. Duncan as to what the deceased, J. J. Robertson, said as to the identification, and the statements made by him as to how it happened, how the trouble happened; you will fake that as the evi*274d…
Kentucky opinions such as Postell v. Commonwealth are cited where dying declaration is disputed. The court stated: "The court will say to the jury that you will consider the evidence of Mr. Duncan as to what the deceased, J. J." That is the language to brief; the rest of the decision supplies the procedural posture.
Allen v. Commonwealth
Allen v. Commonwealth, 134 Ky. 110 (1909)
…monwealth as to what occurred after she went in, except the dying declaration of Mrs. Tutt, which was to the effect that Mrs. Allen came- to her room and shot her with a pistol, when she had nothing and w;as doing nothing to her. On the other hand, Mrs. Allen’s statement was: That Mrs.. Tutthad threatened her the day before, and that she heard her quarreling with her husband, s…
On dying declaration, Allen v. Commonwealth speaks to the Kentucky dispute in this passage: "Mrs. Tutt, which was to the effect that Mrs. Allen came- to her room and shot her with a pistol, when she had nothing and w;as doing nothing to her. On the other hand, Mrs. Allen’s statement was: That Mrs.." The surrounding opinion shows how the court applied that language to the record.
Meade v. Commonwealth.
Meade v. Commonwealth., 225 Ky. 177 (1928)
…that the court erred in admitting what purported to be the dying declaration of Patrick H. Bates. The second alleged error is divided into six parts by counsel in their argument. *179 The appellant lived on Millstone creek about three miles above its mouth. Patrick H. Bates lived on the same creek about one-half mile below the home of Meade. Between the two on the same creek r…
Practitioners open Meade v. Commonwealth. when Kentucky dying declaration turns on the distinction in this sentence: "Patrick H. Bates. The second alleged error is divided into six parts by counsel in their argument. *179 The appellant lived on Millstone creek about three miles above its mouth. Patrick H. Bates lived on the same creek about one-half mile below the home of Meade." Do not lift it out of the facts the court was deciding.
Arnett v. Commonwealth
Arnett v. Commonwealth, 114 Ky. 593 (1903)
…Jane Salyer, the widow of the deceased, to prove an alleged dying declaration which was made to her a short time previous to his death by her husband. It is insisted that this testimony was incompetent, both because it did not sufficiently appear that the dying declarations were made under a sense of impending death, and for the additional reason that under section 606 of the C…
On dying declaration, Arnett v. Commonwealth speaks to the Kentucky dispute in this passage: "Jane Salyer, the widow of the deceased, to prove an alleged dying declaration which was made to her a short time previous to his death by her husband." The surrounding opinion shows how the court applied that language to the record.
Ulrich v. Commonwealth
Ulrich v. Commonwealth, 181 Ky. 519 (1918)
…t he asserts was the admission of incompetent evidence as a dying declaration. Appellant and deceased had not lived together for more than two years before her death. Appellant married her under protest, and soon after he had been arrested and placed in jail on a bastardy charge. He lived with her only a short time and abandoned her.although he lived within a few blocks of her…
Kentucky opinions such as Ulrich v. Commonwealth are cited where dying declaration is disputed. The court stated: "Appellant and deceased had not lived together for more than two years before her death. Appellant married her under protest, and soon after he had been arrested and placed in jail on a bastardy charge. He lived with her only a short time and abandoned her." That is the language to brief; the rest of the decision supplies the procedural posture.
Lucas v. Commonwealth
Lucas v. Commonwealth, 153 Ky. 424 (1913)
…ing. About thirty-six hours before his death, Harlin made a dying declaration to the attending physicians, which had been written out by them and signed by Harlin. When this declaration was shown to an attorney, he advised them that it was not sufficient in form, because it’ did not recite the fact that Harlin believed himself to be in extremis at the time he made it. In order…
Kentucky opinions such as Lucas v. Commonwealth are cited where dying declaration is disputed. The court stated: "About thirty-six hours before his death, Harlin made a dying declaration to the attending physicians, which had been written out by them and signed by Harlin." That is the language to brief; the rest of the decision supplies the procedural posture.
Cochran v. Commonwealth.
Cochran v. Commonwealth., 236 Ky. 284 (1930)
…atements testified to by Mattie Steinhaur and Nanny Hale as dying declarations, and Starr v. Commonwealth, 97 Ky. 193, 30 S. W. 397, 398, 16 Ky. Law Rep. 843, is relied on, where the deceased said to his sister a short time before his death that “he would not get well, ’ ’ that he ‘ ‘ could not stand it much longer, ’ ’ and it was held that this language did not indicate a sens…
Cochran v. Commonwealth. is worth reading on Kentucky dying declaration because the court put the point in its own words: "Mattie Steinhaur and Nanny Hale as dying declarations, and Starr v. Commonwealth, 97 Ky. 193, 30 S. W. 397, 398, 16 Ky. Law Rep." Use that passage as the starting point, then read the facts that precede it.
Hines v. Commonwealth
Hines v. Commonwealth, 90 Ky. 64 (1890)
…was shot by the .accused, and which was offered as proving dying declarations, was incompetent. The record shows that the ■Commonwealth first introduced a witness who, after proving that the accused made the statement when he was in extremis, and under a sense' of impending death, detailed it to the jury, the accused objecting because his statement as to how the difficulty occ…
Practitioners open Hines v. Commonwealth when Kentucky dying declaration turns on the distinction in this sentence: "was shot by the .accused, and which was offered as proving dying declarations, was incompetent. The record shows that the ■Commonwealth first introduced a witness who, after proving that the accused made the statement when he was in extremis, and under a sense' of impending death" Do not lift it out of the facts the court was deciding.
Medical diagnosis or treatment statements
Statements made for medical diagnosis or treatment under Ky. R. Evid. 803(4) cover medical history, past or present symptoms, and their general cause when reasonably pertinent to diagnosis or treatment. The exception is not limited to treating physicians; statements to nurses, EMTs, and consulting clinicians can qualify when the diagnostic purpose is genuine. Fault and identity remain the usual battleground: "I was hit by a car" is often pertinent; "the light was green" usually is not; abuser identity in child-abuse and domestic-violence cases is heavily litigated.
Kentucky medical-statement opinions
David BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee — Wintersheimer, J., dissenting
…990) because the medical report was made for the purpose of medical diagnosis and treatment. The testimony by the brother of the victim was properly admitted because it showed intent, motive or common plan or method of operation. Anastasi v. Commonwealth, 754 S.W.2d 860 (1988). The common characteristics here were that both victims were brothers and considered Bell as a father…
On medical diagnosis hearsay, David BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee — Wintersheimer, J., dissenting speaks to the Kentucky dispute in this passage: "The testimony by the brother of the victim was properly admitted because it showed intent, motive or common plan or method of operation. Anastasi v. Commonwealth, 754 S.W.2d 860 (1988)." The surrounding opinion shows how the court applied that language to the record.
Bruce DRUMM, Appellant, v. COMMONWEALTH of Kentucky, Appellee; Karen DRUMM, Appellant, v. COMMONWEALTH of Kentucky
…expand the hearsay exception for statements for purposes of medical diagnosis or treatment to conform to the modern approach as represented by Rule 803(4) of the Federal Rules of Evidence. Fed.R.Evid. 803(4) blurs the distinction between treating and testifying physicians while it does not completely abolish it. The Federal Rules shift the emphasis in expert testimony to a diff…
Bruce DRUMM, Appellant, v. COMMONWEALTH of Kentucky, Appellee; Karen DRUMM, Appellant, v. COMMONWEALTH of Kentucky is worth reading on Kentucky medical diagnosis hearsay because the court put the point in its own words: "Rule 803(4) of the Federal Rules of Evidence. Fed.R.Evid. 803(4) blurs the distinction between treating and testifying physicians while it does not completely abolish it." Use that passage as the starting point, then read the facts that precede it.
William ALFORD, Appellant, v. COMMONWEALTH of Kentucky, Appellee
William ALFORD, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 2011 Ky. LEXIS 84 (2011)
…dentity of the perpetrator is rarely, if ever, pertinent to medical diagnosis or treatment. Garreii v. Commonwealth, 48 S.W.3d 6, 11-12 (Ky. 2001). This principle was recently reaffirmed by this Court in Colvard, v. Commonwealth, 309 S.W.3d 239 (Ky.2010). This case falls squarely under the general rule. Additionally, while S.A.’s statements to Dr. Hayden describing what was don…
Kentucky opinions such as William ALFORD, Appellant, v. COMMONWEALTH of Kentucky, Appellee are cited where medical diagnosis hearsay is disputed. The court stated: "Garreii v. Commonwealth, 48 S.W.3d 6, 11-12 (Ky. 2001). This principle was recently reaffirmed by this Court in Colvard, v. Commonwealth, 309 S.W.3d 239 (Ky.2010). This case falls squarely under the general rule. Additionally, while S.A.’s statements to Dr." That is the language to brief; the rest of the decision supplies the procedural posture.
Leif Eric HELLSTROM, Appellant, v. COMMONWEALTH of Kentucky, Appellee
Leif Eric HELLSTROM, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 1992 Ky. LEXIS 9 (1992)
…e hearsay exception for “statements made for the purpose of medical diagnosis or treatment” as recently explained in Drumm v. Commonwealth, Ky., 783 S.W.2d 380 (1990). In Drumm we adopted FRE 803(4), which eliminates a distinction using as the sole criterion whether the doctor is a treating or evaluating physician. However, we carefully explained that in doing so we accept the…
Leif Eric HELLSTROM, Appellant, v. COMMONWEALTH of Kentucky, Appellee is worth reading on Kentucky medical diagnosis hearsay because the court put the point in its own words: "Drumm v. Commonwealth, Ky., 783 S.W.2d 380 (1990). In Drumm we adopted FRE 803(4), which eliminates a distinction using as the sole criterion whether the doctor is a treating or evaluating physician." Use that passage as the starting point, then read the facts that precede it.
Sue K. RABOVSKY, Appellant, v. COMMONWEALTH of Kentucky, Appellee — Graves, J., dissenting
…liable evidence. The blood samples were initially taken for medical diagnosis and treatment and not for a criminal prosecution. Had criminal prosecution, such as DUI (where blood is drawn at the hospital and then sent to a state police laboratory), been the primary purpose for taking and analyzing the blood samples, I would concur with Justice Cooper. However, these blood sampl…
On medical diagnosis hearsay, Sue K. RABOVSKY, Appellant, v. COMMONWEALTH of Kentucky, Appellee — Graves, J., dissenting speaks to the Kentucky dispute in this passage: "The blood samples were initially taken for medical diagnosis and treatment and not for a criminal prosecution." The surrounding opinion shows how the court applied that language to the record.
Use of depositions at trial
Ky. R. Civ. P. 32 governs civil deposition use at trial. Ky. R. Crim. P. 7.24 addresses criminal discovery; deposition testimony at trial is uncommon but prior testimony may qualify under Ky. R. Evid. 804(b)(1).
Deposition use is always a two-layer problem: procedural permission to read or play the deposition, plus a hearsay path (often former testimony, party admission, or impeachment). Counsel who satisfy the civil or criminal procedure rule but skip the evidence-rule foundation invite a sustained objection; counsel who have a hearsay exception but failed to preserve the deposition under the procedural rule face the same result. Video designations, counter-designations, and completeness objections should be teed up before the jury is seated.
Kentucky deposition / former-testimony opinions
Michael D. ST. CLAIR, Appellant, v. COMMONWEALTH of Kentucky, Appel — Keller, J., concurring in part and dissenting
…ng the Commonwealth to introduce Ms. Van Zandt’s videotaped deposition without a constitutionally-adequate showing that Ms. Van Zandt was unavailable to testify in person, and (2) failing to grant a directed verdict in Appellant’s favor as to the KRS 532.025(2)(a)(l) aggravating circumstance during the capital sentencing phase. Although I disagree with the basis identified in t…
Michael D. ST. CLAIR, Appellant, v. COMMONWEALTH of Kentucky, Appel — Keller, J., concurring in part and dissenting is worth reading on Kentucky deposition / former testimony because the court put the point in its own words: "Commonwealth to introduce Ms. Van Zandt’s videotaped deposition without a constitutionally-adequate showing that Ms. Van Zandt was unavailable to testify in person, and (2) failing to grant a directed verdict in Appellant’s favor as to the KRS 532." Use that passage as the starting point, then read the facts that precede it.
Steven BRAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee
Steven BRAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 2002 Ky. LEXIS 19 (2002)
…e rule requires that the testimony be taken at a hearing or deposition where cross-examination can occur. As there was no hearing or deposition, KRE 804(b)(1) is not applicable. The Commonwealth argues that the affidavit fits within KRE 803(8),[7] the public records exception to the hearsay rule. This, too, is unavailing. The affidavit was not made by a public agency pursuant t…
Kentucky opinions such as Steven BRAY, Appellant, v. COMMONWEALTH of Kentucky, Appellee are cited where deposition / former testimony is disputed. The court stated: "As there was no hearing or deposition, KRE 804(b)(1) is not applicable. The Commonwealth argues that the affidavit fits within KRE 803(8),[7] the public records exception to the hearsay rule. This, too, is unavailing." That is the language to brief; the rest of the decision supplies the procedural posture.
Todd LOVETT, Appellant v. COMMONWEALTH OF KENTUCKY, Appellee — Keller, J., dissenting
…ation permitted the Commonwealth to introduce the witness’s deposition testimony at Appellant’s scheduled trial — as was clear from the face of the trial court’s order, which provided that the “deposition ... shall be preserved for presentation at the trial in the Marshall Circuit Courtroom.” By entering a conditional plea under RCr 8.09, Appellant preserved his right to appeal…
Kentucky opinions such as Todd LOVETT, Appellant v. COMMONWEALTH OF KENTUCKY, Appellee — Keller, J., dissenting are cited where deposition / former testimony is disputed. The court stated: "Commonwealth to introduce the witness’s deposition testimony at Appellant’s scheduled trial — as was clear from the face of the trial court’s order, which provided that the “deposition ... shall be preserved for presentation at the trial in the Marshall Circuit Courtroom." That is the language to brief; the rest of the decision supplies the procedural posture.
Gary BROOKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee — Keller, J., dissenting
…itness’s testimony at a former trial as the equivalent of a deposition;9 (2) make the admissibility of a witness’s former testimony subject to the Kentucky Rules of Evidence;10 and (3) explicitly authorize objections at trial to portions of deposition testimony and set out the circumstances under which such objections may have been waived: Objections may be made at the trial or…
Practitioners open Gary BROOKS, Appellant, v. COMMONWEALTH of Kentucky, Appellee — Keller, J., dissenting when Kentucky deposition / former testimony turns on the distinction in this sentence: "itness’s testimony at a former trial as the equivalent of a deposition;9 (2) make the admissibility of a witness’s former testimony subject to the Kentucky Rules of Evidence;10 and (3) explicitly authorize objections at trial to portions of deposition testimony and set out the ci" Do not lift it out of the facts the court was deciding.
Riffe & Jones v. McKinney Deposit Bank
Riffe & Jones v. McKinney Deposit Bank, 171 Ky. 757 (1916)
…fore stated. The only testimony in the case consists of the deposition of the plaintiff, Jones, and that of the cashier of the defendant. The former, in giving his deposition, exhibited his pass book, as well as one or two deposit slips, and these, as presented by him, had a tendency to establish at least a part of plaintiff’s claim, but the deposition of the cashier very thoro…
Practitioners open Riffe & Jones v. McKinney Deposit Bank when Kentucky deposition / former testimony turns on the distinction in this sentence: "The only testimony in the case consists of the deposition of the plaintiff, Jones, and that of the cashier of the defendant." Do not lift it out of the facts the court was deciding.
Authenticity: why it matters and how to prove it
Authenticity is not a hearsay doctrine and it is not optional. Under Ky. R. Evid. 901, 902, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. Self-authenticating categories — certified public records, newspapers, acknowledged documents, trade inscriptions, and (where adopted) certified domestic records of a regularly conducted activity — shorten the path, but most trial exhibits still need a sponsoring witness, distinctive characteristics, chain of custody, or process-or-system evidence.
Kentucky coal, equine, and pharmaceutical litigation often hinges on authenticated medical records, mine-safety logs, and social-media evidence under Ky. R. Evid. 901.
Why authenticity gets its own section in every Kentucky trial notebook:
- It is a condition precedent. An unauthenticated exhibit never reaches the relevance, hearsay, or privilege analysis in a useful way — the jury never properly considers it.
- Digital evidence multiplies the failure modes. Screenshots, social-media posts, text threads, and cloud downloads require hash values, account attribution, metadata, or a percipient witness who saw the content created or received.
- Chain of custody is authenticity by another name. Drugs, firearms, biological samples, and seized devices are excluded when the links from seizure to lab to courtroom are broken, even if a hearsay exception would otherwise apply to a lab report.
- Business-records shortcuts do not replace authentication. A custodian can explain record-keeping practices and still fail if nobody can say the particular PDF or printout is the record of this patient, this account, or this machine.
- Self-authentication is narrow. Counsel who wave a notarization or a letterhead and skip the rest of Rule 901-style analysis often lose when the document's contents are disputed.
Practical authentication checklist for Kentucky trials: identify the exhibit; choose a 901 method or a 902 category; line up the sponsoring witness or certificate; preserve chain-of-custody testimony for physical and digital items; and separate the authenticity objection from any hearsay objection so the court rules on each.
Kentucky authenticity opinions
David BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee
David BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 1994 Ky. LEXIS 36 (1994)
…re valid and involve basic propositions of evidence law. A. Authentication The threshold obstacle to the admissibility of this medical report is its lack of authentication. The concept of authentication (or the laying of a "foundation,") relates to a trial court's need for preliminary proof of two things: (1) the pertinence of the proposed evidence to the litigation, and (2) th…
David BELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee is worth reading on Kentucky authentication because the court put the point in its own words: "A. Authentication The threshold obstacle to the admissibility of this medical report is its lack of authentication." Use that passage as the starting point, then read the facts that precede it.
Miguel SOTO, Appellant, v. COMMONWEALTH of Kentucky, Appellee
Miguel SOTO, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 2004 Ky. LEXIS 93 (2004)
…and killed Mr. Porter when he unsuspectingly entered it. C. Authentication. 1. 911 call. The recording of the 911 call from Armotta to Gilbert was properly authenticated. A party may authenticate a telephone conversation: [B]y evidence that a call was made to the number assigned at the time by the telephone company to a particular place or business if: A) In the case of a perso…
Practitioners open Miguel SOTO, Appellant, v. COMMONWEALTH of Kentucky, Appellee when Kentucky authentication turns on the distinction in this sentence: "Mr. Porter when he unsuspectingly entered it. C. Authentication. 1. 911 call. The recording of the 911 call from Armotta to Gilbert was properly authenticated." Do not lift it out of the facts the court was deciding.
William Vernon MATTHEWS, Appellant, v. COMMONWEALTH of Kentucky, Appellee
William Vernon MATTHEWS, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 2005 Ky. LEXIS 161 (2005)
…t introduction of this evidence violated the requirement of authentication. Normally, the laying of a foundation or authentication is necessary for the admission of documentary evidence. KRE 901 states that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in…
Kentucky opinions such as William Vernon MATTHEWS, Appellant, v. COMMONWEALTH of Kentucky, Appellee are cited where authentication is disputed. The court stated: "Normally, the laying of a foundation or authentication is necessary for the admission of documentary evidence." That is the language to brief; the rest of the decision supplies the procedural posture.
Boyd Allen BROCK, Appellant, v. COMMONWEALTH of Kentucky, Appellee
Boyd Allen BROCK, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 1997 Ky. LEXIS 18 (1997)
…wealth next argues that the tape recording was not properly authenticated, because it did not satisfy all of the foundation requirements enumerated in Commonwealth v. Brinkley, Ky., 362 S.W.2d 494, 497 (1962), viz: (1) the transcription device was capable óf taking testimony; (2) the operator of the device was competent to operate it; (3) the recording is authentic and correct;…
Kentucky opinions such as Boyd Allen BROCK, Appellant, v. COMMONWEALTH of Kentucky, Appellee are cited where authentication is disputed. The court stated: "wealth next argues that the tape recording was not properly authenticated, because it did not satisfy all of the foundation requirements enumerated in Commonwealth v. Brinkley, Ky., 362 S.W.2d 494, 497 (1962), viz: (1) the transcription device was capable óf taking testimony; (2)" That is the language to brief; the rest of the decision supplies the procedural posture.
William SANDERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee
William SANDERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee, 2009 Ky. LEXIS 344 (2010)
…diced by the admission of a letter, which he claims was not authenticated. For the reasons set forth herein, we now reverse Appellant's conviction for being a first-degree persistent felony offender and remand to the Jessamine Circuit Court for a new penalty phase trial. We affirm Appellant's conviction for first-degree robbery. On March 24, 2007, Appellant robbed Steven Armstr…
Practitioners open William SANDERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee when Kentucky authentication turns on the distinction in this sentence: "For the reasons set forth herein, we now reverse Appellant's conviction for being a first-degree persistent felony offender and remand to the Jessamine Circuit Court for a new penalty phase trial. We affirm Appellant's conviction for first-degree robbery." Do not lift it out of the facts the court was deciding.
Ima Ruth THRASHER, Individually, and as Executrix of the Estates of Howard Thrasher; And Barry Douglas Thrasher
…of the three documents on the ground that they had not been authenticated, as is required by KRE 901. The trial court then excused the jury and convened an evidentiary hearing to give the Thrashers an opportunity to provide authentication. They called Tilmond Durham as a witness and asked him if he recognized the three documents. He testified that he had never seen any of them…
Kentucky opinions such as Ima Ruth THRASHER, Individually, and as Executrix of the Estates of Howard Thrasher; And Barry Douglas Thrasher are cited where authentication is disputed. The court stated: "KRE 901. The trial court then excused the jury and convened an evidentiary hearing to give the Thrashers an opportunity to provide authentication. They called Tilmond Durham as a witness and asked him if he recognized the three documents." That is the language to brief; the rest of the decision supplies the procedural posture.
Practice checklist
- State the relevance theory in one sentence before naming an exception.
- Run the 403 / unfair-prejudice balance explicitly for other-acts and graphic exhibits.
- For character or other-acts evidence, identify the non-propensity purpose and request a limiting instruction on the record.
- Decide whether an out-of-court statement is hearsay for the purpose offered before hunting exceptions.
- Lay business-records foundations with time, knowledge, regular practice, and custodial qualifications — or a qualifying certification.
- Prove unavailability with specific facts before offering former testimony or dying declarations.
- Treat deposition use as procedure-plus-hearsay; designate and counter-designate early.
- Authenticate every exhibit under Ky. R. Evid. 901, 902 (or the self-authentication path) before arguing hearsay.
- Preserve chain of custody for physical and digital evidence with named custodians.
- Search LawDiver for recent Kentucky appellate evidence opinions before mediation or motions in limine.
Frequently asked questions
What is the primary evidence source in Kentucky?
Kentucky applies the Kentucky Rules of Evidence. Kentucky's rules track the FRE; Ky. R. Evid. 401–902 apply in circuit court trials and are interpreted with reference to federal case law.
How do Kentucky courts decide relevance and unfair prejudice?
Under Ky. R. Evid. 401, 403, evidence must make a fact of consequence more or less probable, and the court may exclude relevant evidence when unfair prejudice, confusion, or waste of time substantially outweighs its probative value.
Are party admissions hearsay in Kentucky?
Party-opponent statements under Ky. R. Evid. 801(d)(2) are generally excluded from the hearsay ban (or treated as an exception, depending on local drafting). They may be offered against the party who made or adopted them without showing unavailability.
What foundation is required for business records?
Under Ky. R. Evid. 803(6), show a record made at or near the time from someone with knowledge, kept in the course of a regularly conducted activity, as a regular practice, through a custodian, qualified witness, or allowed certification — subject to trustworthiness attack.
When can I use a deposition at trial in Kentucky?
Ky. R. Civ. P. 32 governs civil deposition use at trial. Ky. R. Crim. P. 7.24 addresses criminal discovery; deposition testimony at trial is uncommon but prior testimony may qualify under Ky. R. Evid. 804(b)(1).
Why is authenticity separate from hearsay?
Authenticity asks whether the item is what you claim it is; hearsay asks whether out-of-court assertions inside it may be used for their truth. You can lose on either ground independently. Kentucky authenticity practice starts with Ky. R. Evid. 901, 902.
Where do dying declarations and medical statements fit?
Dying declarations under Ky. R. Evid. 804(b)(2) require belief in impending death and concern the cause or circumstances of that believed death. Medical statements under Ky. R. Evid. 803(4) require a genuine diagnostic or treatment purpose and reasonable pertinence to care.