Commonwealth v. Buford , 2006 Ky. LEXIS 106 ( 2006 )

LAMBERT, Concurring Chief Justice.

While I concur with part IIA of the majority opinion, I write separately to comment on the treatment of adoptive admissions in part IIB.

I agree that introduction of the evidence of Appellee’s silence when he was confronted by Waldrop does not amount to a violation of the Fifth Amendment of the Constitution of the United States or Section 11 of the Constitution of Kentucky. To that extent, the majority has correctly decided the issue. However, I take issue with the discussion of adoptive admissions, KRE 801 A(b)(2). Of all the exceptions to the hearsay rule, in my judgment, none is more unreliable or pregnant with ambiguity than adoptive admissions. The theory behind adoptive admissions is that one who is wrongly accused will deny his guilt immediately, and upon his failure of denial, evidence of silence may be introduced as evidence of guilt. Such a view presupposes that all human beings respond similarly to the stress of accusation. I do not believe that to be true; hence my conclusion that such evidence is often unreliable.

I recognize that KRE 801 A(b)(2) has been interpreted to embrace adoptive admissions through silence. “Silence is inferred assent. If innocent, a reaction and declaration may rationally be expected of him rather than a tame submission.”¹ Professor Lawson has recognized that silence in the face of a statement is never free of ambiguity and noted that courts and commentators have urged caution in the use of admissions through silence.² While I do not suggest overruling our cases on this issue, because of the powerful nature of such evidence, and the dubious reliability associated with it, trial judges should guard against any possible abuse and hold the admissibility of such evidence to exacting standards.

1 . Griffith v. Commonwealth, 250 Ky. 506, 63 S.W.2d 594, 596 (1933).

2 . ROBERT G. LAWSON, THE KENTUCKY EVIDENCE LAW HANDBOOK § 8.20(4), at 594 (4th ed.2003)