Evidence of Bias

April 21, 2006

The Supreme Court recently published Baker v. Kammerer, which discussed whether it was an abuse of discretion to prohibit questioning of a rebuttal witness, concerning her employment with defendant’s insurance company. Kammerer indicated that he had just received information that Baker intended on calling two witnesses. One of the witnesses had spoken to Hope Frost, the insurance adjuster employed by Kammerer’s insurance company. Later, Kammerer asked to call Frost to rebut testimony by these witnesses. At issue was whether Baker could elicit from Frost that she was employed by Kammerer’s insurance company as possible bias. The trial judge said no. The Court of Appeals did not find any abuse of discretion in his decision.

The Supreme Court noted that, “[t]he credibility of a witness’ relevant testimony is always at issue and the trial court may not exclude evidence that impeaches credibility even though such testimony would be inadmissible to prove a substantive issue in the case.” The Court ruled that “Given the fundamental importance of the ability to cross-examine as to bias and the trial court’s apparent failure to engage in any meaningful analysis under Rule 403 before prohibiting cross-examination as to Frost’s employment, we conclude that the trial court abused its discretion in this case.”

Justice Cooper, Scott and Wintersheimer dissented. Cooper pointed to Baker’s failure to truly identify the purpose of his questioning as bias. He also pointed to the record, which revealed an exchange between Baker’s counsel, Kammerer’s counsel and Frost where Kammerer’s attorney was identified as “your attorney.” (Inferring that Frost was biased towards Kammerer). Most importantly, he believed the trial court clearly conducted the KRE 403 analysis the majority found lacking in its decision.

Comment: This cases raises an interesting issue about when to call witnesses. Just because you “can” call a witness does not mean that you should. Frost’s rebuttal evidence was only slightly effective and even bolstered one witness. By calling Frost to rebut plaintiff’s witnesses, Kammerer surely put her possible bias as an employee of his insurance company at issue. While I agree with Cooper that the trial judge conducted the 403 analysis, (he clearly kept out mention of insurance as highly prejudicial), I think the rebuttal witness’ employment by the defendant’s insurance company, is probative and outweighs its prejudicial affect. This was best exemplified by the two questions the jury submitted after deliberations began; “Who is Hope Frost?” and “What’s her interest in this case?”

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