Federalizing Trial Court
Objections
HOW TO PERSUADE YOUR
TRIAL JUDGE AND
PROTECT YOUR CLIENT’S
RIGHTS FOR STATE AND
FEDERAL APPEAL
 In the joint trial of a couple accused of
killing the husband’s child, the prosecutor
seeks to introduce statements the wife gave
to the police which include comments about
the husband being alone with the child and
what he might have done with her during
the time period she was injured. The wife
does not testify at trial.
What Objections Would You Make?
A. The statement is
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D. All of the above.
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inadmissible hearsay as
an out of court
statement offered for its
truth.
B. The statement violates
the 6th Am.
Confrontation Clause.
C. The statement violates
Bruton v. United States.
We don’t want any inculpatory statements. That term is defined by
Crawford and the case that interprets Crawford. Made by Joy Watkins
that incultatory Patrick Watkins until and unless Ms. Watkins takes the
stand and we have a cross examination right. I don’t know if she is going
to, I don’t know but we would ask that anything that is testimonial in
nature that is inculpatory against Mr. Watkins not be played in the court
room unless until she takes that stand.
Correct Answer:
 D. All of the above.
 This evidence is hearsay and violates state law- KRE
801.
 But it also violates the confrontation clause of the
6th. Am. which was clearly established by the USSCT
in Bruton v. United States.
Why is it Important to Look for Federal Claim?
 If the objection was just to hearsay:
 the trial judge would not understand appellate courts
have said this is improper
 the federal claim would not be preserved for appeal
 Best objection is to both state law and federal
constitutional violation, including:

Amendment, specific clause, major case that applies
How specific do you have to be?
 Harris v. CW., 384 S.W.3d 117, 130 (Ky. 2012)
 Court complained about citing the 6th and 14th Ams.
and Secs. 2 and 11 of the Ky. Const, and only providing
one SCOTUS case cite- Chambers v. Miss., for right to
present a defense.
 Court said this violated CR 76.12(4)(c)(v)- no citations
of authority pertinent to each issue of law.
 Easier to cite pertinent authority on appeal and in
habeas when it is cited in the trial court.
 Did it matter that atty. said the wife’s statement
violated Crawford, not Bruton?

No, because in his written motion, the attorney cited both
Crawford and Bruton and the 6th. Am.

Preservation not just what you say, also what you write.
 Prosecutor calls snitch to testify against three
defendants in a homicide. Snitch’s probation was
revoked by prosecutor that morning. Prosecutor
makes motion in limine that if a witness has a prior
felony conviction, that felony cannot be identified.
 At the start of direct, prosecutor asks if she is a
convicted felon, then asks if her office prosecuted,
did the prosecutor have her in court that morning,
was the snitch on probation until then and did the
prosecutor file a motion to revoke her probation and
out her in prison.
 Defense moves to question snitch on pending
charges and details of her prior cases. Argues
prosecutor opened the door.
 What other arguments can be made for admitting
this defense evidence that preserve the issue for full
review?
I agree with Mr. Flowers but also add far as the pending
charges are concerned especially, I think we can ask about
those regardless. Davis v. Alaska and its progeny would
indicate that anything with gives a witness bias or potential
bias
Or the appearance of bias is fair game on cross. I think we are allowed to
ask her about pending charges- maybe not name the charges, only the fact
that she has pending cases and what potential sentences she could get
from those charges and the fact that she got a potential sentence in those
cases to show motivation- I don’t know if they made her promises or not.
But her motivation to please the CW is absolutely relevant regardless of
Ms. Blondell’s questioning frankly. I don’t think that any door needed to
be open.
Davis v. Alaska- 6th Am. right to confront witnesses against you includes the right to
cross-x allows questioning on things that give rise to bias or motive to lie like
probationary status.
 Kentucky holds the same: Commonwealth v. Cox, 837 S.W.2d 898, 901-02
(Ky. 1992)
 SCT held that it was reversible error to prevent the defense from cross-xing a
Commonwealth witness about whether he was on probation for the
misdemeanor conviction for making obscene phone calls.
 “Patrick's probation raised the possibility that it gave him an incentive to
cooperate with the prosecutor. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105,
39 L.Ed.2d 347 (1974); Adcock, supra. Cross-examination has traditionally
been allowed to impeach, i.e., to discredit the witness. Davis v. Alaska, supra,
415 U.S. at 316…. The appellee in the instant case, consistently asserted
throughout the trial that the prosecutrix accused him of the alleged sexual
abuse after he threatened to tell her “secrets.” These “secrets,” according to the
appellee, included allegations of sexual activity with, among others, Randy
Patrick. In earlier testimony Patrick refuted this theory of the appellee.”-
 “The appellee's opportunity to impeach Patrick for bias was improperly denied;
thus his right as found in the confrontation clause was violated. Delaware v.
Van Arsdall, supra.” [475 U.S. 673, (1986)]. See also Olden v. Kentucky, 488
U.S. 227 (1988) .
Due Process Right to Present Defense
 The due process clause of the 14th Am. gives the defendant the
right to present a defense- can do through impeachment on
motive and bias.
 Chambers v. Mississippi, 410 U.S. 284, 294 (1973)-“The right
of an accused in a criminal trial to due process is, in essence,
the right to a fair opportunity to defend against the State's
accusations.”
 Crane v. Kentucky, 476 U.S. 683, 690 (1986)-“Whether
rooted directly in the Due Process Clause of the Fourteenth
Amendment . . . or in the Compulsory Process or
Confrontation clauses of the Sixth Amendment . . ., the
Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.”
 United States v. Scheffer, 523 U.S. 303 (1998) (rules
can abridge right to present a defense- does it
implicate significant interest of accused)
 Holmes v. South Carolina, 547 U.S. 319, 324-5
(2006) (“This right [to present a defense] is abridged
by evidence rules that infringe upon a weighty
interest of the accused and are arbitrary or
disproportionate to the purposes they are designed
to serve.”)
How do I know if the Right to Present a Defense
is Violated?
 If you want to ask a witness a question, admit
evidence or call your own witness and the trial court
is saying no, object that you are being denied your
due process right to present a defense under the 14th
Am.!
We Aren’t Just Making this Up!
 Beaty v. Commonwealth, 125 S.W.3d 196 (Ky. 2003)-Cites
Chambers (DP is a fair opportunity to defend against charges),
Crane (RPD), and Scheffer (exclusion of evidence unconstitutional
when it significantly undermines fundamental elements of defense).
 Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky. 2010)-Cites
Chambers, Crane, Schaffer, and Holmes. Asserts the USSC has
created a balancing test to determine whether the rule relied upon
for the exclusion of evidence is arbitrary or disproportionate to the
State’s legitimate interests.
 McPherson v. Commonwealth, 360 S.W.3d 207, 214 (Ky. 2012)-
Cites Chambers, Scheffer, Holmes, Montgomery, Beaty. (KYSCT
upheld exclusion of details of the prior felony of McPherson’s
accomplice.)
If CW’s objection is based on a rule or statute
that prevents this evidence from coming in:
 Allen v. Commonwealth, 395 S.W.3d 451, 474-476
(Ky. 2013)(C.J. Minton, concurring): “Although case
law does not refer to it as such, this inquiry is
essentially an as-applied constitutional challenge to
the rules of evidence: does application of the rules of
evidence in this particular case result in an unfair
trial. This Court recently explained the appropriate
analysis in McPherson and Montgomery.”
The Constitution Trumps Rules and Statutes
 “The common and necessary thread of these cases is that
a criminal defendant's constitutional rights to
exculpatory information prevail over rules and statutes
that prohibit the defendant from receiving the
information. This is true even if those rules or statutes
purport to absolutely prohibit disclosure. Id. To put it
simply, ‘constitutional rights prevail over conflicting
statutes and rules.’ Id. at 558.” Commonwealth, Cabinet
for Health and Family Services v. Bartlett, 311 S.W.3d
224, 227 (Ky. 2010) [citing Barroso]
 READ THIS CASE!!
Establishing Federal Constitutional
Violation when Evidence Erroneously Admitted
 Due Process Violations
 “[T]he Fifth and Fourteenth Amendments'
commands that federal and state trials, respectively,
must be conducted in accordance with due process of
law” is the “standard” by which to “test federal and
state rules of evidence.” Dutton v Evans, 400 U.S.
74, 96-97 (1970) (HARLAN, J., concurring in result)
Helpful Cases
 “Erroneous evidentiary rulings can, in combination, rise
to the level of a due process violation.”
Montana v. Egelhoff, 518 U.S. 37, 53 (1996), interpreting
the Chambers holding. Must ‘offend[ ] some principle of
justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental.’ Id. at 43.
 “Consistent with [state] rules, the Due Process Clauses of
the Fifth and Fourteenth Amendments may constitute a
further bar to admission of, for example, unreliable
evidence.”
Michigan v. Bryant, 131 S. Ct. 1143, 1162, 179 L. Ed. 2d
93 (2011)
What’s the Test?
 “[D]ue process is violated, …, only if an evidentiary ruling
is “so egregious that it results in a denial of
fundamental fairness.” Ege v. Yukins, 485 F.3d 364,
375 (6th Cir. 2007), citing Bugh v. Mitchell, 329 F.3d
496, 512 (6th Cir.2003).
 “Whether the admission of prejudicial evidence
constitutes a denial of fundamental fairness turns upon
‘whether the evidence is material in the sense of
a crucial, critical highly significant factor.’” Brown
v. O’Dea, 227 F.3d 642, 645 (6th. Cir. 2000) [cite
omitted].
 Due Process violations re: other bad acts
 Parle v. Runnels, 505 F.3d 922 (9th Cir.2007) (state
court's admission of “egregiously unreliable” other-acts
evidence “rendered [the petitioner's] defense ‘far less
persuasive than it might have been’ ” and thus “deprived
Petitioner of a fair trial”).
 Peterkin v. Horn, 176 F.Supp.2d 342 (E.D.Pa.2001)
(admission of other-acts evidence violated the
petitioner's “constitutional right to a fair trial”).
 Gumm v. Mitchell, 2011 WL 1237572 (S.D. Ohio Mar. 29,
2011) (state court's admission of “egregiously unreliable”
other-acts evidence “deprived Petitioner of a fair trial”).
I Can’t Remember All These Cases!
 Keep a cheat sheet of major federal cases and one
line script, i.e. prosecutor must turn over exculpatory
evidence under Brady v. Maryland, racially
motivated use of peremptories violates Batson, etc.
 Brainstorm your case/issues! You can identify issues
and find cases before trial. We can help!
 File written motions if possible.
Basic Objections
 If you have not gotten to present something you
wanted, object under due process clause of 14th. Am.
denial of right to present a defense.
 If prosecutor did something you did not want her to
do, argue due process 14th. Am, denial of right to
fundamentally fair trial.
So What Happens When you do this Right?
 “However, we conclude that the following statements
were improperly admitted and should have been
redacted in order to protect Patrick's right of
confrontation under Bruton. In her statements, Joy
indicated that Patrick was upstairs with Michaela
alone when she was burned in the bath tub…”
Watkins v. Commonwealth, 2011 WL 1641764 (Ky.
Apr. 21, 2011).
 Client won on appeal.