Ky. Sup. Ct. Order 2021-31

Supreme Court of Kentucky

2021-31

ORDER

IN RE: ADOPTION OF RULE 410A OF THE KENTUCKY RULES OF

EVIDENCE

During the 2021 legislative session, the Kentucky General Assembly

passed Senate Bill (SB) 4 (Act of Apr. 9, 2021, ch. 202 § 5, 2021 Ky. Acts

1508), which created a new evidence rule for Kentucky Rules of Evidence (KRE)

401-412. The rule relates to the admissibility of evidence obtained from an

arrest or search warrant that authorized entry without notice, more familiarly

known as a “no knock” warrant.

KRE 1102 sets forth the process for amending the evidence rules.

Although KRE 1102(b) authorizes the General Assembly to “adopt amendments

or additions to the Kentucky Rules of Evidence not reported to the General

Assembly by the Supreme Court,” it specifically prohibits the General Assembly

from adopting amendments or additions to the KRE “that constitute rules of

practice and procedure under Section 116 of the Constitution of Kentucky.” In

addition, KRE 1102(c) contains the admonition that “[n]either the Supreme

Court nor the General Assembly should undertake to amend or add to the

Kentucky Rules of Evidence without first obtaining a review of proposed

amendments or additions from the Evidence Rules Review Commission

described in KRE 1103.”

The Supreme Court finds that the new evidence rule created by the

General Assembly in SB 4 (2021) constitutes a rule of practice and procedure.

Accordingly, its adoption violates Section 116 of the Constitution of Kentucky

and KRE 1102(b). Nevertheless, under KRE 1103, the chair of the Kentucky

Evidence Rules Review Commission called a meeting to review the proposed

new evidence rule. After a brief discussion, the Commission voted unanimously

for the rule’s adoption.

Because the Kentucky Evidence Rules Review Commission voted

favorably for the new evidence rule, and because the Supreme Court agrees the

rule should be granted comity, it is ORDERED under Section 116 of the

Constitution of Kentucky that the new evidence rule set forth below, KRE

410A, Arrest or search warrant authorizing entry without notice, is hereby

adopted.

KRE 410A – Arrest or search warrant authorizing entry without notice.

(a) Except as provided in subdivision (b) of this rule, the following evidence

is not admissible in any civil or criminal proceeding:

(1) Evidence gathered by use of an arrest warrant or search warrant

authorizing entry without notice that did not comply with

applicable statutes; or

(2) Evidence gathered by use of an arrest warrant or search warrant

authorizing entry without notice that was obtained through perjury

or material false statement.

(b) Evidence excluded in subdivision (a) of this rule is admissible if otherwise

admissible under these rules, and:

(1) In a civil case, offered by the plaintiff in an action for damages

arising from the warrant; or

(2) In a criminal proceeding for perjury or material false statement in

the application for the warrant, offered against the defendant.

COMMENT

As of the adoption of this rule, the applicable statutes referenced in Section

(a)(1) of this rule are contained in Kentucky Revised Statutes (KRS) 455.180-

.200.

Entered this 25th day of August 2021.

______________________________

CHIEF JUSTICE

All sitting; all concur.