The Circuit Court for Franklin county,

Commonwealth of Kentucky.

Commonwealth               )        Defendants' Motion in Limine

vs.                                 )        to Exclude Hearsay Evidence

A. J. Downard and           )

Joseph MacKenzie          )

Come now Defendants A. J. Downard and Joseph MacKenzie, by and through their attorney Henry Trent Esq., to request that this Honorable Court preclude from evidence any statements by witnesses to Sheriff Frank Sawyer, if said witnesses are not present in court.

The Commonwealth intends to introduce in particular the statement of Mrs. Cooper, widow of the deceased, who is said to be unavailable to testify.

FIRST, her statement violates the defendants' rights under the Kentucky Constitution Bill of Rights Section 12 which says "That in all criminal prosecutions, the accused hath a right... to meet the witnesses face to face," and the Sixth article of the Amendments to the Federal Constitution, which guarantees "That in all criminal prosecutions the accused shall enjoy the right... to be confronted with the witnesses against him."

While exceptions have been made for deathbed testimony and proper depositions of witnesses too ill to appear, there is no basis for allowing Mrs. Cooper's testimony.

"A memorandum of the testimony of witnesses examined before a coroner, taken by a person who was present, which witnesses are not produced in court, is not admissible in evidence on the trial of a capital case, even if it be proved." The State of S. Carolina v. M'Elmurray, 3 Strobh. 33, cited in Halsted's Digest of the Law of Evidence, 1859.

"It has been held, with regard to a witness examined before the coroner, that if he is absent, proof that every endeavor has been made to find him, will not authorize the reading of his examination." Lord Morley's Case, Kel. 55.

SECOND, her statement is inadmissible because it was not taken under oath, and the defendants were not allowed to cross-examine Mrs. Cooper even during the time the sheriff questioned her.

"It is a general principal of evidence, that to render a deposition of any kind evidence against a party, it must appear to have been taken on oath, in a judicial proceeding and that the party should have an opportunity to cross-examine the witness." Attorney-General v. Davison, M'Clel. & Y. 169., also The People v. Restell, 3 Hill, 289 (N.Y.), cited in Halsted.

THIRD, Mrs. Cooper's statement is not admissible under the exception to hearsay rules for public records or official registers recorded in the ordinary discharge of duties, since that exception is meant for facts such as marriage and birth records, and not for obvious recording of hearsay such as Mrs. Cooper's statement during the Sheriff's investigation.

Additionally, there are parts of Mrs. Cooper's statement which would not be admissible even if she were testifying in person, and in this context are merely hearsay of hearsay. These are in the section beginning "Did you see who fired" through "No. Just Mr. Cooper, MacKenzie and Downard," and again from "What disagreements have they had in the past?" through "They had pretty much had a falling out at this point in time." The question "What reason would they have to kill Mr. cooper..." is also objectionable because it calls for a conclusion on the part of the witness.

WHEREFORE, the defendants respectfully request that this court issue an order precluding the Commonwealth from proffering evidence concerning statements by witnesses to Sheriff Frank Sawyer if those witnesses are not present in court, and specifically to preclude Mrs. Cooper's statements unless she be present to be cross-examined.

Respectfully Submitted,

(signed)_________

Henry Trent, Esq.

Attorney for the Defendants