The Prior Inconsistent Statement Project, Part 6 (Kentucky)

Kentucky is another jurisdiction I have identified as a possible jurisdictions where a recanted prior inconsistent statement not given subject to the penalty of perjury might be sufficient to support a conviction. Let’s take a look at the case law.

I had a tough time finding any on point precedent in Kentucky. Maybe the most relevant opinion is an unpublished one: Payne v. Commonwealth, 2005 WL 119769 (Ky. 2011). In Payne, Bernie Payne was charged with four counts of first-degree rape. 

In a tape-recorded interview on October 21, 2002, the then sixteen-year-old victim told a Kentucky state trooper and a social worker that her father had forced her to have sexual intercourse. She also provided the investigators with a handwritten statement detailing the abuse that started in 1998—1999. The next day, two state troopers located Payne at a cemetery after responding to a call that he was there and could be suicidal. At the cemetery, Payne, a former police officer, confessed to raping his daughter in 1998 and 1999 and signed a statement to that effect. Two days later, and while in jail, Payne confessed again, this time to the same state trooper and social worker who had interviewed his daughter.

At trial, however, the alleged victim “claimed that her prior statement was false and that she only gave it because the state trooper threatened that if she did not give it, she would be taken from her home.”

After he was convicted, Payne appealed, claiming that there was insufficient evidence to support his conviction. The Supreme Court of Kentucky disagreed, concluding that

The victim gave a detailed tape-recorded and handwritten statement to a state trooper and a social worker about the sexual misconduct of her father. Although she recanted her accusations at trial, there was still sufficient evidence of the defendant’s guilt….Twice, the defendant confessed to sexual intercourse with his own daughter. Payne specifically admitted during the second confession that on two occasions the penetration was slight and on two other occasions there was full penetration. His explanation at trial that he confessed because he didn’t want his kids taken away from their home was not logical or credible. Evidence was presented that the acts occurred in 1998 and 1999. There was sufficient evidence to support the verdict and there was no palpable error. (emphasis added)

The bolded language seems to imply that the Supreme Court of Kentucky would not find that a recanted prior inconsistent statement alone would be sufficient to support a conviction. In other words, it looks like the court was saying that the recanted allegations would not be enough to support Payne’s convictions but that other evidence such as Payne’s own admission meant that “there was still sufficient evidence of the defendant’s guilt.” That said, Payne was an unpublished opinion, and it’s not entirely clear how the court would have ruled with a different factual context.

One thing that is clear is that Kentucky requires strict compliance with Kentucky Rule of Evidence 613(a) before a prior inconsistent statement can be admitted substantively under Kentucky Rule of Evidence 801A(a)(1). As the Supreme Court of Kentucky noted in Meece v. Commonwealth, 348 S.W.3d 627, 681-82 (Ky. 2011),

“A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the declarant testifies at the trial or hearing and is examined concerning the statement, with a foundation laid as required by KRE 613, and the statement is: (1) Inconsistent with the declarant’s testimony….” KRE 801A(a). KRE 613(a) provides:

Before other evidence can be offered of the witness having made at another time a different statement, he must be inquired of concerning it, with the circumstances of time, place, and persons present, as correctly as the examining party can present them; and, if it be in writing, it must be shown to the witness, with opportunity to explain it.

Our precedent has “consistently required strict compliance with the foundation requirements of … KRE 613(a).” Noel v. Commonwealth, 76 S.W.3d 923, 930 (Ky.2002). The intent of the rule is to first give the witness an opportunity to admit and explain the statement, but if the witness denies it, he may then be impeached by it under KRE 801A(a)(1).

-CM