Document Type
Article
Publication Date
3-24-2017
Recommended Citation
Moore, Janet, "Motion for Leave to File Amicus Curiae Brief and Brief for the National Association for Public Defense and Kentucky Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner, Sneed v. Burress (U.S. March 24, 2017) (No. 16-8047)." (2017). Faculty Articles and Other Publications. 359.
https://scholarship.law.uc.edu/fac_pubs/359
COinS
Comments
By silencing criminal defense lawyers during opening statement - the crucial first opportunity to present the defense theory of the case - the Kentucky Supreme Court has imposed dangerous limitations on rights guaranteed under the Sixth and Fourteenth Amendments. More specifically, by misapplying an evidentiary rule designed to check prosecutorial misconduct, those courts have eliminated the crucial first opportunity of criminal defendants to alert jurors that the sole issue in a case is the credibility of the complaining witness. This radical restriction on defense advocacy does not merely fly in the face of broad consensus among courts and commentators on the crucial role of the opening statement in setting a framework for juror comprehension of what they are about to see and hear during trial. The decisions of the Kentucky courts strike a harsh and fundamentally unfair blow against defendants' due process rights to be heard as well as their rights to confront the witnesses against them and to present a defense. Denying defendants the opportunity to highlight the single factual question upon which their liberty turns is antithetical to our system of adversarial fact finding. For the foregoing reasons, this Court should grant certiorari and reverse.