March 27th. The Kansas Supreme Court has issued its decision in State v. King (No. 95,088), an appeal from a rape conviction which tested the bounds of whether certain evidentiary questions could be appealed without a contemporaneous objection by using the vehicle of alleged prosecutorial misconduct. In a unanimous opinion, written by then Justice Davis, the court ruled that appellate review of a prosecutor’s questioning of a witness requires an objection at the time of the trial. Previous cases which had allowed the separate prosecutorial misconduct standard to be used where no objection had been made were overturned by this decision. Note: Robert E. Davis is now the Chief Justice of the Kansas Supreme Court, but this case was argued in March 2008, under former Chief Justice Kay McFarland.
Prosecutors may not use a defendant’s post-arrest silence to impeach their credibility under cross examination. This is under the United States Supreme Court decision in Doyle v. Ohio (1976), or the Kansas cases implementing that decision. In William King’s trial for the rape and criminal sodomy of a woman between Pittsburg and the Missouri border, the prosecutor commented on the fact that in King’s written statement to police he did not mention that he had had sex with her, sex which at trial he was maintaining was consensual. This potentially was impermissable since King was under no compulsion to provide the police with anything given his Fifth Amendment right to silence. His defense counsel did not object to this line of questioning at the time.
Appellate rules in Kansas, as specified by statute, require that an objection must be raised at the original trial to any issue which the defendant wishes to raise on appeal. This is a procedural bar which the Kansas Supreme Court (and indeed the United States Supreme Court) has repeatedly held is practically absolute, even in cases where the defendant alleges that his constitutional rights have been violated. The reason is that without this rule litigation would be endless and by requiring a contemporaneous objection, trial errors can be addressed at trial, avoiding the need for appeals and retrials.
At the same time, in cases of prosecutorial misconduct the Kansas Supreme Court has held that the objection need not be raised at the time of trial for the appellate court to consider the matter. This is because prosecutorial misconduct can be seen as compromising the fundamental due process right to a fair trial.
The tension in this case was whether the conduct challenged under Doyle could be challenged as prosecutorial misconduct, or whether it was procedurally barred. After a review of the caselaw, and the statute requiring contemporaneous objection as well as U.S. Supreme Court decisions touching on these kinds of procedural bars, the court concluded that allowing appeals concerning prosecutors questioning of witnesses to get around the contemporaneous objection requirement by alleging prosecutorial misconduct was blurring the law and defeating the intent of the legislature. As a result the court disapproved its caselaw which allowed this and restated the law to the effect that prosecutorial misconduct can still be alleged for voir dire, opening statements and closing statements without a contemporaneous objection, but that in appeals concerning prosecutors questioning of witnesses, the objection is required to have been made at the original trial.
The court also ruled against King on two other issues. Firstly it rejected his argument that the prosecutor had improperly implied he was a liar during closing argument (which would not be allowed). It noted that the prosecutor was responding to the defense counsel who had implied that King’s victim was lying, by asking the jury which of King or the victim had a motive to lie. Secondly, it rejected his appeal against a restitution plan which the District Court had ordered without taking into account King’s ability to pay it. The Court held that it is up to the defendant to raise questions of ability to pay during restitution hearings, noting that it took this part of this case in order to make clear that the District Court only has the obligation to take this into account when considering restitution to the Board of Indigents’ Defense Services.