Prior Cross-Examination at an Aborted Trial Satisfies the Confrontation Clause on Retrial

Comprehensive Commentary on Elsie Franklin v. Commonwealth of Kentucky, Supreme Court of Kentucky, 20 June 2025

1. Introduction

The Supreme Court of Kentucky’s unpublished memorandum opinion in Elsie Franklin v. Commonwealth addresses the evidentiary fallout that occurs when (1) a child-victim witness testifies at a first trial, (2) a mistrial is declared for reasons unrelated to the witness, and (3) the witness later refuses to testify at the retrial. Although designated “Not to be Published,” the decision elucidates how Kentucky courts may admit prior trial testimony, Child Advocacy Center (CAC) interviews, and even post-indictment “recantation” videos without offending the Confrontation Clause or Kentucky Rules of Evidence (KRE).

Appellant Elsie Franklin, the grandmother of the alleged victim (“Sam”), was convicted on multiple sexual-offence counts and sentenced to twenty years’ imprisonment. On appeal she asserted six primary errors, the centerpiece being that replaying Sam’s earlier testimony and interviews—when he was unavailable to testify in person—violated her confrontation rights.

2. Summary of the Judgment

• The Court unanimously affirmed all convictions and the 20-year total sentence.
• Key holdings:
  • Prior trial testimony is admissible under KRE 804(b)(1) where the child witness is later unavailable and was meaningfully cross-examined the first time.
  • CAC forensic interviews may be played as prior consistent statements under KRE 801A(a)(2) when the defence has already attacked the witness’s credibility.
  • A post-indictment “recantation” video, offered by the defence, qualifies as a prior inconsistent statement notwithstanding the witness’s absence.
  • Differentiating jury instructions by location of the rape (grandmother’s bed vs. child’s bed) satisfied Kentucky’s unanimity requirement.
  • Evidence that Franklin later lost custody of her grandchildren was properly admitted after she elicited testimony painting herself as an exemplary caregiver, thereby “opening the door.”
  • No cumulative error occurred.

3. In-Depth Analysis

3.1 Precedents Cited and Their Influence

• Crawford v. Washington, 541 U.S. 36 (2004) – bedrock Confrontation Clause case; Court reaffirmed that unavailability + prior opportunity for cross-examination suffices.
• King v. Commonwealth, 554 S.W.3d 343 (Ky. 2018) – approved admission of a child’s taped CAC interview as a prior consistent statement after credibility attack; the Franklin Court treated the facts as “analogous” and followed King’s two-step (evidentiary/confrontation) analysis.
• Shields v. Commonwealth, 647 S.W.3d 144 (Ky. 2022) – discussed “opportunity and similar motive” for cross-examination; Franklin distinguished but implicitly applied its framework.
• Allen v. United States, 164 U.S. 492 (1896) – cited regarding the propriety of an Allen (dynamite) charge after a hung jury.
• Additional supportive Kentucky cases: McAtee (2013), Manery (2016), Brock (1997), Bartley (2016), Johnson (2013), Barrett (2023) et al., each filling logical gaps on hearsay exceptions, unanimity, and character evidence.

3.2 Legal Reasoning

1. Unavailability & Prior Testimony – KRE 804(b)(1)
   Sam refused to testify despite court order; this satisfies KRE 804(a)(2). Because his first-trial testimony was given under oath and subject to cross-examination, it met both Crawford’s requirement and the rule’s “opportunity & similar motive” test.
2. Prior Consistent Statements – KRE 801A(a)(2)
   Defence counsel had impeached Sam’s credibility at the first trial. That impeachment unlocked the Commonwealth’s right to rehabilitate him with CAC interviews demonstrating consistency before any alleged motive to fabricate. Playing the tapes after Sam became unavailable did not violate confrontation because the earlier cross-examination already occurred (per King).
3. Prior Inconsistent Statement – “Recantation” Video
   Offered by the defence, the video was admissible under KRE 613 & 801A(a)(1). Although Sam had never been questioned on that specific recantation, the Court held the Constitution does not require recross once adequate cross-examination on the same subject matter has happened.
4. Jury-Instruction Specificity & Unanimity
   Differentiating by physical location (child’s bed vs. Franklin’s bed) was enough to ensure the jury was voting on distinct occurrences, satisfying Section 7 of the Kentucky Constitution.
5. Directed Verdict Standard
   Even with no physical evidence and with a recantation tape, Sam’s sworn testimony plus CAC interviews constituted substantial evidence; credibility choices belong to the jury.
6. Character Evidence – “Opening the Door” Doctrine
   Once Franklin introduced specific instances of good caregiving, the Commonwealth could rebut with the fact of later custody removal; restricted scope avoided unfair prejudice.

3.3 Likely Impact on Kentucky Practice

• Although unpublished—and therefore non-precedential under RAP 40(D)—Franklin provides pragmatic guidance for prosecutors and trial courts after a mistrial involving a child witness. Expect more frequent reliance on preserved video testimony where re-appearance of the witness becomes problematic.
• The opinion underscores the strategic importance of thorough cross-examination at the first trial: if the prosecution’s case aborts for external reasons, that record may become decisive at any subsequent proceeding.
• Defence counsel should anticipate that credibility attacks open the evidentiary gate for prior consistent statements, including full CAC interviews, and weigh such impeachment tactics carefully.
• The decision clarifies how minimal factual distinctions (room A vs. room B) can satisfy jury-unanimity requirements in multiple-count child-sex cases, offering a template for future jury-instruction drafting.

4. Complex Concepts Simplified

• Confrontation Clause – The Sixth Amendment requires that defendants face (i.e., question) the witnesses against them. If a witness is “unavailable,” prior testimony is still admissible only if it was previously subject to cross-examination.
• KRE 804(b)(1) – A hearsay exception allowing prior testimony in when the declarant is unavailable, and the opposing party had a chance to cross-examine earlier.
• Prior Consistent vs. Inconsistent Statements (KRE 801A)
  • Consistent: Earlier statements that match the witness’s in-court testimony; admissible to rebut claims of fabrication.
  • Inconsistent: Earlier statements that conflict with current testimony; admissible to impeach credibility.
• “Opening the Door” – When one party introduces inadmissible or borderline evidence, the other party may introduce otherwise barred rebuttal evidence to correct a skewed picture.
• Allen Charge – A supplemental instruction urging a deadlocked jury to continue deliberating and attempt to reach unanimity, approved since 1896.
• Palpable Error Review (RCr 10.26) – Kentucky’s “plain error” rule: an unpreserved error warrants reversal only if it results in manifest injustice.

5. Conclusion

While not citable as binding precedent, Franklin is a thorough roadmap for handling testimonial evidence when a child witness becomes unavailable after a mistrial. The Court reaffirmed that a single, meaningful cross-examination can carry forward, paving the way for admission of broad categories of prior statements—consistent or otherwise—and shielding convictions from Confrontation Clause attack. Defence strategies that challenge credibility must now account for the near-automatic admissibility of corroborative CAC materials, and trial judges receive confirmation that succinct factual labels in jury instructions satisfy unanimity concerns. Practitioners should catalogue this decision as persuasive authority on these practical, recurring trial issues even though its unpublished status limits formal citation.