Episode 18: Attorneys Robert Mattingly and Kevin Burke examine whether the absence of a valid driver’s license is admissible evidence in standard Kentucky auto accident trials. While KRS 186.640 implies that unlicensed drivers are prima facie negligent, Rob and Kevin explain that Kentucky courts have long rejected this “cruel and almost savage” doctrine. Major cases such as Rentschler v. Lewis and Pierson v. Hartline affirm that a driver’s license status is generally irrelevant to determining the specific cause of a collision. The discussion clarifies that these rules apply specifically to standard passenger vehicle accidents rather than commercial trucking or negligent hiring cases. Even if a statutory presumption of negligence exists, it is considered a legal matter for the judge and should not be presented to the jury. Finally, the episode notes that the judiciary’s control over evidentiary rules suggests that legislative attempts to mandate the admission of such evidence may violate the separation of powers.
Editor’s Note: If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.
Question of the Day:
Lauren Byrn:
Hey, Rob and Kevin, is not possessing a valid driver’s license admissible in an auto case?
Robert Mattingly:
Well, Lauren, that is a great question. And for our listeners, I just want to let everyone know, and Lauren and I got to tell the story of how we got to this particular podcast or this podcast topic. I do get asked this question all of the time from other attorneys, but also usually from potential clients. And Lauren and I went out last week, we had a client that called us. It was an auto accident. We went out and met with them. And our potential client, we didn’t take the case, our potential client rear-ended somebody. The other vehicle had been stopped in traffic for an appropriate amount of time. They clearly didn’t do anything else wrong, and our potential client rear-ended them. But they were fired up because at the scene, the police officer told them the other driver, the one that was appropriately stopped in traffic and paying attention, didn’t have a license and was writing them a ticket.
So they’re like, “Of course I have a claim.” They didn’t have a license, which is of course not what the law says.
Kevin Burke:
But it does have some intuitive appeal, right? If your client’s been injured and they come to you and that’s a valid question that you need to answer for them because they’re like, “Hey, the other person didn’t have a license or it was a suspended license and things like that.” But we know Kentucky law has addressed this, right, Rob?
Robert Mattingly:
Well, they’ve addressed it. They’ve addressed it very clearly. And it’s just so funny because this does pop up. And I’m talking, this potential client, I mean, Lauren, they were mad.
Lauren Byrn:
Very mad.
Robert Mattingly:
And they kept saying if they hadn’t been on the road that this never would’ve happened. They’re like, “Well, maybe you would’ve reared somebody else. I don’t really know.”
Kevin Burke:
Right, right, right.
Robert Mattingly:
So that’s our topic today, and it really is a good question. So let me just come back before we move on. So that what we’re going to answer today, and there’s Kentucky case law right on point, is if one of the parties involved in an auto accident does not have a license, perhaps they never got it, perhaps it was suspended for some reason. If they don’t have a license, does that make them at fault? Is that admissible at trial? Can you present that to a jury? The answer to all these questions are going to be no. So for my non-lawyers out there listening to the podcast, the answer’s going to be no, it’s not admissible. But we want to go through a couple of cases, and there’s really three of them. Before we get into that, let me just tell you who all we got in the studio and cover some things I usually cover at the beginning.
Obviously, you just heard from Lauren and you heard from Kevin Burke, who is our appellate lawyer. Everybody, welcome back to the studio.
Kevin Burke:
It’s great to be back.
Lauren Byrn:
Yeah, same here.
Robert Mattingly:
And Lauren, it’s nice to have you back going on it. Remember everybody that we do submit these for CLE approval. We do that through the Kentucky Bar Association, but Kevin and Lauren and I, we do it through the Kentucky Justice Association, KJA, which you all know is very near and dear to our hearts. And if you want to listen to the podcast and just learn all about the topic, you can. But if you want CLE credit, I don’t know how long, if it’s going to be 30 or 45 minutes, we’ll see how long we talk today, but we’ll submit it in here probably in about a month, we’ll be able to have the activity code for you and through the KJA, you can purchase that and really help support a good cause and get your hours in.
As always, if you would like to hear, I’m sorry, if you would like to get a copy of the cases in the case file, we give those out for free. You can email me, robertmattinglyattorney@gmail.com, or you can email Kevin whose email is kevin@burkeneal.com. Shoot either of us an email, just say, “Hey, can I get the case file on the podcast about driver’s license?” And we’ll shoot all that over to you.
Well, let’s start to do this. Why don’t we move into the very first segment where we actually start talking a little law?
All right, so here we go. Is not having an operator’s license admissible? Kevin, why don’t you begin before we jump into the cases? Why don’t you let our listeners know what we’re not talking about today, commercial motor vehicles, those kind of things. Explain what we’re not covering.
Kevin Burke:
Right. Well, we’re just talking about your ordinary run-of-the-mill auto accident here, like driver one versus driver two, that sort of thing. We’re not talking about negligent hiring claims, negligent training claims that would come up, say for instance, in the commercial trucking context, that sort of thing. That’s kind of a different animal. So let’s just carve that out of what we’re talking about today, because that’s a completely different analysis. And whether, for instance, a trucking company knew that their driver didn’t have a license or had a CDL suspended or all sorts of problems with their driver that might’ve affected the accident, that’s a different analysis. So I think we should carve that out, don’t you think, Rob?
Robert Mattingly:
Yeah, I just want everybody to know that is completely different. There’s federal regulations regarding that, whether or not Uber or Lyft or some other company who hires professional drivers has an obligation under supervision retention type claims, hiring claims. None of that. What we’re talking about is Ms. Sally wrecks into the back of Mr. Henry. There’s two people. Most of the cases that our listeners have is the fact that there’s not an operator’s license admissible. So yeah, that’s where we’re at. Okay, Kevin, why don’t you go ahead and tell us what case do we want to start at? And then maybe I’ll jump into some of the facts, but what are we going to cover there?
Kevin Burke:
Well, I think Rentschler vs Lewis, that’s a Kentucky Supreme Court case from 2000. And I think that’s kind of the starting point for the analysis. It does reference some case law that preceded Rentschler and it discusses that. But if you’re doing the analysis, if you’re doing the legal analysis, Rentschler is probably the first case you’re going to come upon and you do a Westlaw search, that sort of thing, and it gives you a good summary. So I think probably Rentschler is the best place to start. It of course discusses a statute, KRS 186.640 within the context of that opinion. But for legal research purposes, you pull up Rentschler, you’re going to get 99% of your answers from that case.
Robert Mattingly:
All right, well then let’s do this. We’re going to talk about, for our listeners, Rentschler versus Lewis, which is 33 Southwest 3rd 518. It’s a Supreme Court case from 2000. Within that, we’re going to talk about an old case called Tipton vs. Estill Ice Company, but that was all mentioned in Rentschler. So right now you’re about to get both of those. And then we’ll conclude our analysis when we move on with the Pierson versus Hartline case, which Kevin actually worked on. So those are the three ones that we’ll cover. So let’s jump right in. Here are the facts generally, Kevin, and if you don’t mind me covering Rentschler a little bit. We go back to, the case was in 2000, but back in October of 1994, two motor vehicles, one driven by Rentschler and one by Lewis. They collided in a parking lot actually over off Shelbyville Road Manor, that shopping parking over there.
You’re familiar with that area of town?
Kevin Burke:
Oh yeah, I know that area.
Robert Mattingly:
Yeah. So there’s a parking lot accident and it was disputed who was at fault. So Rentschler brings these claims against Lewis. And part of what Rentschler wanted to introduce is Lewis didn’t have an operator’s license, Kevin. Uh-oh.
Kevin Burke:
Yeah. Whoops.
Robert Mattingly:
Uh-oh. And of course, Rentschler, like the potential client that we didn’t take that I talked about earlier says, “Well, of course I win. He didn’t have a license.”
And so the lawyers get it and they look at it, and there is a Kentucky revised statute on point. So this being an audio podcast, I’m going to go ahead and read that to you. But Rentschler says, “Look, KRS 186.640 says as following,” and it’s only three lines. Let me read it to you. “Any driver involved in any accident resulting in any damages, whatever to person or to property who is ineligible to procure an operator’s license or being eligible therefore has failed to procure a license or whose license has been canceled, suspended, or revoked prior to the time of the accident shall be deemed prima facie negligent in causing or contributing to the accident.” Shall be deemed. That’s a powerful statute, Kevin. Seems to be right on point and seems to say all of it’s coming in. So I understand Rentschler’s point at that point in time.
Unfortunately for Rentschler, what we’re going to find out is the courts over and over have said, yeah, that’s not what the law says. That’s exactly right. We’re not going to be doing that. So when you do your research and you come across this statute and you think, oh look, it’s right on point. You got to know Rentschler and Tipton and Pierson. But that’s what happened. So they say, Rentschler says, look, this statute’s right on point. I get to introduce this evidence against Lewis. Parking lot accident, disputed fault, but I win because of this statute. Kevin, you want to take us through some analysis?
Kevin Burke:
Yeah. So first thing, the court obviously had to grapple with the statute. So they’re like, well, here’s what the statute says, but it doesn’t really matter in the context of, well, what evidence comes in? Because that’s something the court determines. So the court says, well, how is it relevant? Whether there’s a valid license, a suspended license, why does it matter at all for the purposes of the wreck? And so when you look at it through that lens, the statute isn’t as clear as maybe the legislature thought it was. But for the court, the issue is simple. Is it relevant? Is it probative? Does it matter as far as how the accident happened? And when you look at it through that lens, that kind of guts the statute when you think of it that way.
Robert Mattingly:
Yeah, I mean, in a broad sense, if someone is sitting at a red light, they don’t have a license, but they’re sitting there and they’re rear-ended. If the person that’s rear-ended doesn’t have a license, it doesn’t make their at fault. They didn’t necessarily violate any duties in regards to the rules of the road at that point in time.
Kevin Burke:
Right. And the legislature just can’t create a reality through a statute. They’re saying, “Oh, well, you’re negligent because you didn’t have a license.” Well, no, that’s not how it works. You have to be at fault. And Rentschler builds on Tipton. Now, Tipton was factually a little bit different than the facts in Rentschler, but that didn’t drive the analysis for the Supreme Court in Rentschler. They’re like, “Well, let’s look. We understand that there wasn’t a license in Tipton and here there was a suspended license,” that sort of thing. But that didn’t matter for the purpose of the analysis. The court was looking at the holding in Tipton and applying it to the facts here.
Robert Mattingly:
So tell us, let’s come back to Tipton in a second. They talk about it. It’s a really old case. Walk me through the analysis of Rentschler. What do they say to the extent we haven’t already covered that?
Kevin Burke:
Yeah. Well, what’s Rentschler arguing? So let’s do that. And the court kind of summarizes this. So Rentschler argues that Lewis’s status as an unlicensed driver was relevant because he had no legal right to be on the highway when the accident occurred. And the court then goes, they cite a case called Moore vs. Hart, where the same issue was kind of raised is like, well, an unlicensed driver is considered a trespasser upon. The argument was that an unlicensed driver is considered a trespasser on the highway who’s guilty of negligence per se and not entitled to the protections of the law. And the court said, here’s the quote. The court says that proposition is “cruel and almost savage doctrine.”
Robert Mattingly:
Cruel and almost savage.
Kevin Burke:
Well, it’s just almost savage. It’s not savage proper, right? Almost savage. But that’s pretty strong language.
Robert Mattingly:
But that is within Rentschler. They’re talking about another case which is Moore. And that was from Massachusetts or something like that. Lauren, what do you think about that? Cruel and almost savage. That’s pretty strong language for a court, isn’t it?
Lauren Byrn:
Yeah. I did not go to law school and I did want to comment on that because I don’t know if I’ve ever heard that term in the legal world.
Robert Mattingly:
It is cruel and almost savage.
Kevin Burke:
Yes, cruel and almost savage. So they say to their credit, the courts of Massachusetts have long since abandoned this cruel and almost savage doctrine. So Massachusetts walking by. Good for them.
Robert Mattingly:
So also, if you don’t have a license in Massachusetts, apparently it’s not coming in there either.
Kevin Burke:
Yeah. If you’re driving the cahr at Fenway Pahrk, that sort of thing.
Robert Mattingly:
Well, I’m going to throw one at you because when they say it’s cruel and almost savage, it reminds me of the old Braveheart movie. You’ve seen Braveheart?
Kevin Burke:
Yeah. Oh yeah. Who doesn’t love it?
Robert Mattingly:
What’s the quote there?
Kevin Burke:
Lauren, do you remember? Here it is. I’m going to paraphrase. They may take our lives, but they’ll never take away our freedom.
Robert Mattingly:
That’s right.
Kevin Burke:
Is that right? Is that close? Okay.
Robert Mattingly:
I looked this up. “They may take our life, but they will not take our freedom.”
Kevin Burke:
Oh, okay. I almost had it.
Robert Mattingly:
And I love this one. Not everyone dies. No, everyone dies, but not everyone lives.
Kevin Burke:
There you go. So true.
Robert Mattingly:
Also Braveheart. But when Lauren and I were joking about that cruel and savage language, we were joking about Braveheart and how that sounds like the court’s just like, “You cannot do this.” But let’s bring it back so our listeners are following where we’re at.
So we have this case and then they’re rented and they’re quoting Tipton in it. And then they also quote this old Moore case from, where did we say that was from? Missouri? But everyone is finding the same. When you’re talking about whether or not the admissibility of someone not having a license, it just doesn’t come in. It’s not going to be admissible under those circumstances. Is that what we’re getting to, Kevin?
Kevin Burke:
Yeah, that’s right. Yeah, it’s just not, like I said, they go through this analysis just to reach that result. But like I said, they go through older cases. They go through the Massachusetts case.
Robert Mattingly:
Massachusetts. I said Missouri, but Massachusetts.
Kevin Burke:
Well, Moore was an older case from 1916, but they do cite this case, Chase vs New York Central Railroad, which is a Massachusetts case. And that’s also for the cruel and almost savage doctrine type stuff. So they cite the Massachusetts case law. In other words, they’re putting in the work here. The opinion’s putting in the work. They’re talking about old cases. They discuss Tipton. They even look out into cases outside of Kentucky, just to do a fulsome analysis here.
Robert Mattingly:
And for the listeners, I think if you’re arguing this, and it does pop up and I’ve had to argue it, I think the court is spending a lot of time here because they’ve got a statute that says it comes in. It’s a really old statute. It’s a statute that I read to you all earlier that says it comes in, but the court in Tipton said a long time ago, no, it doesn’t. It’s back in front of the court, the Supreme Court in Rentschler. And they’re not really arguing or they’re not really focusing on it. The statute is constitutional. They don’t need to take it that far.
Kevin Burke:
No.
Robert Mattingly:
But because they have a statute, they’re really going to great lengths to say, look, the rules say it doesn’t come in for the relevancy rules and what’s it go to, and all those things that we’ve already discussed. So they’re kind of going out of their way to really say, we’re not following the statute.
Kevin Burke:
And I think this shows that the Supreme Court does this every day. They have to return to first principles when they consider a case. So it’s not enough in this context where one of the parties is arguing to overturn Tipton. There’s a legitimate argument here, and it’s in the dissent too, to say, “Well, look, maybe Supreme Court, you should overrule Tipton and follow the statutory language and all that.” And so the Supreme Court has to, as they do, go back to first principles and consider that proposition as well. And as we know, as I just referenced, there is a dissent in this case from one justice who said, “Well, maybe we should get rid of Tipton.”
So that’s also another reason to go through a deeper analysis, talk about older cases and maybe extra jurisdictional cases like the cases from Massachusetts to support their analysis. Or the majority opinion wants to support its analysis here.
Robert Mattingly:
Yeah, I mean, I felt like they did a good job. They’re faced with the statute. They weren’t going to follow it, so they needed to say why. And this is, for our listeners, a really detailed opinion. If you have this issue, it’s going to come up. Really, you want to read Rentschler and then in a minute we’re going to talk about Pierson. You want to read those too and give those to your trial judge, and hopefully that’ll put it to bed.
Before we move on from there, I did want to talk just a little bit, and Kevin, 30 seconds to a minute. The cases go through that there’s a rebuttable presumption. And there’s a really good quote as a general rule, civil law presumptions, live and die. Live and die, they say, without the knowledge of the jury and without affecting the judge’s charge in any way.
And I love that they’re talking about it’s cruel and savage and now they live and die. Which is what made me think someone must have read Braveheart right before they wrote this opinion because man, they have some strong language. But why don’t you take a minute and just talk about what’d they talk about rebuttable presumptions? We see that come up in other areas of the law. Let our listeners know about that.
Kevin Burke:
Yeah. So this goes to the argument that they’re addressing the argument that KRS 186.640 purports to create a rebuttable presumption. So the language is like, “Well, it’s rebuttable presumption of negligence basically if you have a suspended license or no valid license,” that sort of thing. So they’re like, “Well, what does that mean? What impact does that have as far as what the jury hears?” And what they say in the opinion, they actually quote Palmore, “It is never proper to instruct the jury as to presumptions of law or a fact.” So the jury doesn’t. Their point in talking about rebuttable presumption is this is something that happens in the background, away from the jury. It’s something for the judge and the parties to discuss, but it’s not something that the jury ever hears about.
Robert Mattingly:
We’re not going to give them a jury instruction on that. Correct. We’re not going to tell them what the law says. So in a broader sense, as we relate to this topic, I think what the court is saying is at best this statute gives a rebuttable presumption once the party that they want to introduce the no license against. Once the person that was going to come in against comes with evidence that they’re not at fault, maybe it’s eyewitness testimony, maybe it’s an accident reconstructionist, maybe it’s their own testimony. Evidence that they’re not at fault, that would rebut a presumption and it doesn’t need to come in and the jury doesn’t need to hear about any of this.
Kevin Burke:
Right. And if that evidence comes in, why would the jury hear about the presumption? And they even say that. So that’s kind of a backstop for the court. They’re like, “Well, even if this is a rebuttable presumption, then it wouldn’t matter. The jury would never hear about it.” And so they even say that. Thus, even if we were to accept, which we do not, Rentschler’s invitation to overrule Tipton, the result would be the same. So it’s the same no matter what, even without Tipton they’re saying because of the nature of rebuttable presumptions.
Robert Mattingly:
Got it. Before we move on, and so that’s a little side note because you can apply that analysis in your other cases, your other topics that involve rebuttable presumptions. So we wanted to make sure the listeners understood that. That certainly applied here to this topic. Anything else about Rentschler before we move on to the next section?
Kevin Burke:
I think we’ve covered it. I guess my only question is, did Braveheart come out before Rentschler?
Robert Mattingly:
That is a great question. I don’t know. You know what we should do? We should have producer Jim look that up while we’re sitting here recording that. The question being, what year did Braveheart come out?
Kevin Burke:
I don’t know. I mean, I haven’t done the prep.
Robert Mattingly:
No, I bet it did. I bet they watched Braveheart the night before they wrote this.
Kevin Burke:
You think they did? They were all fired up. They were ready to roll?
Robert Mattingly:
I mean, they’re same presumptions, live and die. The doctrine is cruel and savage.
Kevin Burke:
Really, really almost savage.
Robert Mattingly:
It was almost. Yeah. It’s not savage. It does for our listeners say almost savage.
Kevin Burke:
Almost savage.
Robert Mattingly:
It’s like savage adjacent.
Kevin Burke:
Exactly.
Robert Mattingly:
Producer Jim’s putting up on the screen right now for those that listening, we have a cheat screen we listened to. May of 1995 was Braveheart.
Kevin Burke:
Okay. See? So they did have Braveheart to draw upon.
Robert Mattingly:
Although what did I say? This wreck happened in ‘94, right? So the wreck happened before.
Kevin Burke:
But the opinion comes out in 2000.
Robert Mattingly:
But the opinion comes after.
Kevin Burke:
Certainly within time.
Robert Mattingly:
Braveheart was right in the middle of it.
Kevin Burke:
Certainly enough time for Braveheart to sink in.
Robert Mattingly:
Yeah, that’s right. That’s right. Okay. Well, let’s work on transitioning.
All right, so we have now talked about the statute, and then we know how the statute would apply and how the court in Rentschler said, no, it doesn’t apply. They can’t do that. We covered Rentschler. Within Rentschler, we talked about Tipton because Tipton originally said this, and those are really the cases you want to know. Let me give you one other case that we want to talk about. The next case is Pierson vs Heartline. I had the Westlaw cite 2021 Westlaw 2272769. This is a Kentucky Court of Appeals case from 2021. And we’re going to let Kevin take over and go through this case. It’s going to come to the same conclusion for our listeners, but it’s really interesting because Jay Vaughn, this was his case for our listeners that you probably know Jay, great trial lawyer, tries a lot of case, former KJA President and a good friend of mine.
He worked on this case, and then Kevin worked on the appeal. And Jay really did a great job in this case because while the trial judge ruled against him and he had to try the case, he actually takes this up to appeal and the appeals court with Jay and Kevin reverses the trial judge and says, “No, we’ve said a long time ago. This is not admissible,” because in Jay’s case they let it in. And they reversed an entire trial based on this concept. So really, really a shout out to Jay. And of course, Kevin sitting in the studio with me. It’s your all’s case. Why don’t you tell us all about it?
Kevin Burke:
Yean, so shout out to my law partner, Jamie Neal, who also did fabulous work on the briefing here.
Robert Mattingly:
Isn’t Jamie great, by the way?
Kevin Burke:
Jamie is.
Robert Mattingly:
If you’re listening, you’ve got to get in the studio with us.
Kevin Burke:
That’s right. So Pierson vs Hartline, here are basic facts, and you can read the opinion to dig into the details, but it was basically a car versus motorcycle wreck. And it happened back in 2014 up in Boone County. But basically, plaintiff Pierson, the defendant, Hartline, entered a curve in a road at the same time. They were traveling in the opposite directions and they collided. So the question is who was at fault? And on impact, Pierson, who was on a motorcycle, was thrown from the motorcycle into a roadside ditch. So it was serious injuries, but kind of came down to a he said-she said kind of a thing as far as who was at fault. Who caused the wreck?
Robert Mattingly:
So one of them obviously left their lane in the opposite direction. And who did that?
Kevin Burke:
That’s exactly right. And the opinion talks about that. The parties dispute which vehicle crossed the center line causing the collision. It’s a classic jury issue. This one went to trial. So it came down to who the jury believed and looking at the evidence and that sort of thing. Close call, right?
So before trial, Jay had filed a motion in limine to keep out evidence under Rentschler to keep out Pierson’s suspended license. And so that was the issue. I mean, Jay was like, “I’m filing a motion. I got a case on point.” And the judge said, “Well, but what about the statute?” And Jay said, “But what about Rentschler?” So this is kind of a…
Robert Mattingly:
As we’ve talked about this actually.
Kevin Burke:
We’ve talked about the statute. And so at the end of the day, the judge definitively ruled on Jay’s motion in limine. Jay files a motion in limine. The defendant responded, of course, tried to distinguish Rentschler, tried to say, “This case is a little bit different,” et cetera, et cetera. And then the judge ultimately said, “Well, look, I’m going to go with what the statute says. And so the evidence of the suspended license is going to come in.” So Jay files his motion, defendant responds, they have oral arguments. The judge hears it, and the judge says, “I’m ruling on this before trial. This evidence about the suspended license is coming in.”
Robert Mattingly:
Yeah. And it’s interesting too, because Rentschler is so strong and Rentschler went through the statute, but the judge still looked at the statute and said, and I guess it had been a long time since Rentschler, but we’re going to let that in. So the jury’s going to hear all about Jay’s client not having a license. And I don’t know if Jay, maybe he forgot to quote Braveheart or something like that, that somehow the judge let it in, right?
Kevin Burke:
That’s right. That’s exactly right.
Robert Mattingly:
And judges look at things and they have to make tough decisions, so there’s no not knocking on anybody there.
Kevin Burke:
No, no.
Robert Mattingly:
And he did, I think that I read a quote where he says “the statute says, what the statute says.” And it does. The statute says it comes in, but the Supreme Court has already ruled that we’re not following that statute.
Kevin Burke:
Right. Again, as we just discussed with Rentschler, it’s a very thorough analysis, but the judge felt compelled to follow the statute instead.
Robert Mattingly:
So if we’re talking about this now, so Jay’s getting ready to try a case and it’s going to come in that his client didn’t have a license. Is it disputed liability. Two vehicles coming the other direction. Who crossed the center line? And as we talked about in the beginning of this, to lay people, non-lawyers not understanding duty, breach, causation, damages, all the elements of negligence and all those things, they’re thinking, “Well, of course, if you didn’t have a license, you weren’t on the road, the wreck never would’ve happened. You should have been sitting at home on your back porch. So it’s clearly your fault.” So you run into that. I’m going to call it layman’s terms. That’s the legal term for just non-lawyers. You could see why that could hurt Jay and why Jay would be very concerned about that.
Kevin Burke:
That’s right.
Robert Mattingly:
So before we get into all the different topics that we want to talk about this, I guess the next question would be, does defense counsel let it go? Do they just bring it up once or twice? Or how’s defense counsel used that against Jay at trial?
Kevin Burke:
Throughout trial.
Robert Mattingly:
As many times as they can say it.
Kevin Burke:
As many times as they can say it. So yeah, opening, throughout trial, and closing. And the opinion talks about all those things too. But like I said, Jay had a definitive motion. The defendant took advantage, not saying that in a negative way. Had a favorable ruling.
Robert Mattingly:
They had a favorable ruling.
Kevin Burke:
So they took advantage of that to introduce this evidence at trial.
Robert Mattingly:
Before we get into all the specifics about it, ultimately Jay loses at trial, presumably because this was a big part of the evidence that came in. He appealed it and ultimately for our listeners, the court’s going to reverse the decision, reverse the trial. The entire trial gets reversed because this evidence came in when it really shouldn’t have.
Kevin Burke:
That’s right. That’s the takeaway.
Robert Mattingly:
Well, good, good. What are you thinking, Lauren?
Lauren Byrn:
Yeah, I was reading that and since Jay Vaughn brought it up first in voir dire before the defense, did they waive it?
Kevin Burke:
Yeah, that’s a great question. And certainly this was one of the arguments the defendant made on appeal is to say, well, there was a waiver because the. So again, Jay files a motion in limine to keep it out. Defendant responds. There’s a definitive ruling on the motion, so the judge says it’s coming in. And then Jay in jury selection brings it up first.
Robert Mattingly:
As he has to.
Kevin Burke:
You have to. And so the defendant argues, well, you waived it because you brought it up. You brought up what you claim is inadmissible evidence.
Robert Mattingly:
You opened the door.
Kevin Burke:
You opened the door, et cetera, et cetera. And again, definitive ruling before trial that it’s already coming in. So fortunately, we have a case on point called O’Bryan versus Hedgespeth. Rob, have we addressed O’Bryan before?
Robert Mattingly:
I think we have. Well, I tell you, for all the listeners that have been following as I’m sure they listened to Episode 7 on Collateral Source where we broke down O’Bryan a lot. But in addition to the collateral source, it talked exactly about this particular issue and whether or not you waive it. So jump into that analysis.
Kevin Burke:
Yeah, so for the collateral source in O’Bryan, that evidence, the court had already ruled on that before trial. And same thing, plaintiff tries to get ahead of it. And the court says, “Well, that’s not a waiver. You’ve received a definitive ruling.” And O’Bryan makes clear that that is not a waiver. And in Pierson, they quote from O’Bryan extensively on that point, on that very point. And that’s why Jay didn’t do anything wrong. Jay didn’t waive anything. You already received a definitive ruling and he was getting out in front of it. O’Bryan says that’s okay.
Robert Mattingly:
Well, I got two things. One, I don’t know if, again, this being audio, not video, producer Jim is over there with a big sign right now and it says, “Push Episode 7, Push Episode 7.” So listeners, go back and listen to episode seven because not only do we cover the collateral source rule, but we also cover that strategic issue and how you handle that trial. But the big picture is the judge said, “This is all coming in. You’re going to get to tell the jury that he doesn’t have a license.” So Jay has to question the jury on it. He does exactly what he’s supposed to do.” And when you read the opinion, it says, I think they got 20 of the potential jurors, 20 of them essentially said that they would hold it against the defendant or against Jay’s client for not having a license.
And that is a large number of people that are holding it against it. That becomes very difficult to have a fair trial.
Kevin Burke:
Oh yeah. I mean, prejudice right there. But again, we’ll talk about harmless. There was a harmless error analysis as well that the defendant raised. But yeah, it must have been hard for the defendant to argue that it was non-prejudicial under those circumstances.
Robert Mattingly:
When you have 20 people saying that would affect their decision.
Kevin Burke:
Exactly.
Robert Mattingly:
Well, Jay does a good job. He brings it out. You have to explore those. And then ultimately people get seated on the jury, a jury gets picked, some of whom had expressed that opinion get seated. So we know that bias is from the very beginning of trial coming in. And there we have it. That’s the motion in limine, that’s the voir dire. And then does it get brought up? We’ve talked about it being in jury selection. Does it get brought up in openings, Kevin? Does it get brought up with. Where else throughout trial?
Kevin Burke:
Oh yeah, throughout trial and even in closing. And again, the opinion quotes from the defendant’s closing stating that Pierson hadn’t had a driver’s license in years and that he was unable to operate a motorcycle. And if Pierson just would’ve been obeying the law, just been obeying the law that states that he cannot operate a motorcycle or motor vehicle without a license, this accident doesn’t take place.
Robert Mattingly:
That was closing arguments.
Kevin Burke:
Leaning into it.
Robert Mattingly:
If he had just stayed home that day.
Kevin Burke:
Yeah, that’s right. So it’s hard. Again, from start to finish, the defendant was really leaning into this.
Robert Mattingly:
All right. So we’ve talked about the motions in limine. We’ve talked about how that happened in jury selection. Do you want to go through some of the analysis that the court makes? How does the court of appeals get to their conclusions?
Kevin Burke:
Yeah, so we raised really three issues on appeal. One was whether the trial court erred in admitting evidence of Pierson’s suspended license. There was another issue about whether the trial court erred in failing to exclude jurors for cause. Court ultimately didn’t need to address that. And then there was a bad faith argument, which we didn’t. That’s not important for the purposes of our analysis here.
So really the top issue was just whether the admission of evidence of Pierson suspended license should have come in. Whether it should have come in first. Second, whether the defendant argued, well, even if it shouldn’t have come in, it was harmless error. That’s another argument they made. They made this waiver argument that we’ve already talked about and that the court rejects.
But the court goes through in detail, it mentions the statute again. It mentions Tipton again. It goes through that analysis. It goes through Rentschler, it goes through the rebuttable presumption stuff. It cites again Moore versus Hart, the Kentucky case from 1916. I mean, it’s a very thorough analysis that reinforces Rentschler. And it’s the Court of Appeals. They’re bound by Rentschler. So it’s not like the Supreme Court reconsidering or overruling its own precedent. The Court of Appeals has to follow binding precedent here. But they also support it. It’s well-reasoned. They don’t shy away from Rentschler in any way, but they are bound to follow it. So they make that clear as well.
Robert Mattingly:
Yeah. And I like that because they go all the way through the quote again about cruel and almost savage doctrine. And I like when I see strong language against something that gets used over and over and then gets used more recently. Again, the Pierson opinion being in 2021, so not that long ago. They’re continuing to say just by using very strong language, how outdated of a doctrine this really is.
Kevin Burke:
Right.
Robert Mattingly:
So that’s all part of what we need to be talking about. All right. Anything else that we need to talk about on Rentschler? What do they do? What’s the conclusion and what do they send it back for?
Kevin Burke:
Well, again, Rentschler, Rentschler, Rentschler is the answer, but they talk about the Kentucky Rules of Evidence, KRE 401, KRE 403. I thought this was interesting. They said to the extent that Pierson’s suspended license is relevant. So you have to get over the relevancy hurdle first, 401, and they say it’s not relevant. They say, “To the extent that Pierson’s suspended license is relevant to Pierson’s skill as a motorist, the trial court must consider whether there is other less prejudicial evidence that may be used to support the same proposition.” So in other words, even in that context where it might be relevant, you have to consider other evidence rather than just going to suspended license. So there are other ways to get to relevant non-prejudicial evidence than just going to suspended license.
Robert Mattingly:
And I think that’s an important part to make sure that the listeners understand. The suspension or failure to have a driver’s license is not coming in. Again, this is, again, not a commercial motor vehicle case, but under these facts, it’s not coming in. But the court does say we do understand that trial judges have some discretion on the evidence coming in. So if for some reason the point that the person had a history of speeding or a history of DUI or something that the trial judge believed was relevant to the facts of that case, if the trial does wanted to let that in, they could make those decisions to let it in without also saying this person’s license was suspended. So for example, if somehow, and it does read that it would be a very rare circumstance that you would have someone where you could say, “Well, they’ve had six speeding charges, or they had a previous DUI.
I mean, it would be hard to get that in, but if the judge wanted that to come in, then you could just let in the convictions on those charges without taking the next step of, oh by the way, their license was suspended in this case.
Kevin Burke:
That’s right.
Robert Mattingly:
And hopefully, although that seems pretty confusing, at least that would be less prejudicial for the panel, the jury panel to get through.
Kevin Burke:
That’s exactly right. And so I think that’s the point the court of appeals is trying to hit there is like, “Well, even if.” And again, they’re supporting, it’s a very thorough opinion. They’re just going through the what ifs in this circumstance. Obviously, that’s not the circumstance here, but they just go through that kind of what if, this, this, and this, and reinforce Rentschler that way.
Robert Mattingly:
Good. So we have a very clear ruling on all of this information, it sounds like. And for our listeners, when you just have two people in an accident, if one of their licenses is suspended or they don’t have it or it’s been revoked or wherever the case may be, the odds are that is not going to come in and it’s not going to come in under Tipton or Rentschler or Pierson. So take these cases, give them to your trial judge, and that should be it.
I do want to cover, because we want to make sure we get the proper credit, and we need to cover just a couple more minutes. In Pierson, Kevin, when I read it, I understand that you all made at least initially some arguments that the statute itself, the one that keeps giving us all these headaches, the statute itself is unconstitutional. And you went through the various reasons that that statute, the 186.640 is unconstitutional.
But for the listener’s sake, the court never has to get to those arguments because there was a much simpler way to reverse the trial and get this back down for a new trial without ever heading the constitutionality. Is that right?
Kevin Burke:
That’s exactly right. But that’s a great point. Jay did initially have to preserve that argument in the trial court. And because it’s a constitutional challenge to the statute, he had to notify the attorney general, which we’ve talked about before in another podcast that you must do. If you’re challenging a statute as unconstitutional, you have to do certain things. You can’t just make the argument. You have to notify the attorney general. And there’s a statute on that. It’s now in our rules of appellate procedure (RAP23) that you have to do that.
Robert Mattingly:
Which we covered in a podcast.
Kevin Burke:
Right.
Robert Mattingly:
Kevin Burke:
So we just want to flag that. So Jay did that too in the trial court level to make sure his issue. He felt pretty good about Rentschler, he should have, but he wanted to make sure, well, if this goes up, and he didn’t know if it would just go up to the court of appeals, it could have gone up to the Supreme Court. And so he wanted to make sure he had all his bases covered. And so he notified the Attorney General of the constitutional challenge. So then what is the constitutional challenge to your point, Rob?
The constitutional challenge here is under the separation of powers doctrine that only the court gets to establish rules of evidence that the legislature can’t say, oh, this must come in as evidence. The suspended license must come in at trial even if it’s irrelevant, even if it’s unduly prejudicial in violation of KRE 403.
So that’s exclusively the province of the courts. And that analysis was covered in O’Bryan. That’s why the collateral source statute was found unconstitutional.
So what Jay did is he borrowed that analysis from O’Bryan, that constitutional analysis, and he made it in the context of the suspended license statute. Does that make sense?
Robert Mattingly:
It makes perfect sense. And I guess the takeaway for our listeners, as we wrap up with just a couple minutes left, is on the facts without holding the statute unconstitutional, the Supreme Court and the Court of Appeals have both said, “We’re not following that statute under the facts.” So you should win there.
Kevin Burke:
Right.
Robert Mattingly:
But in the event that you find yourself briefing this, if you want to be thorough, you might as well pull-out Pierson, steal the language from there about how it’s unconstitutional.
Kevin Burke:
Or at least the arguments.
Robert Mattingly:
The arguments. The underlying arguments. Because the court just didn’t rule on that. We don’t have to get to it. This is such an easy call. We don’t have to get to it. But in the event that you run into a different panel that wants it, give notice to the Attorney General. I mean, why not throw all that stuff in there just so that you have that preserved in case you need it? I’d be surprised if you needed it, but Jay did a great job preserving it with you. You helped him on that. Why not?
Kevin Burke:
Yeah, it’s the next step. It’s the next step. It’s sometimes not enough to cite a case and even hear a published case on point, Rentschler. And Pierson is an unpublished opinion from the Court of Appeals, but of course relies on published case law. But sometimes you have to wonder, well, what happens if it goes all the way to the end? What else would I want? What other arguments might I have other than this? And that requires some creative thinking, frankly, because you have to, in your mind, assume, well, let’s assume Rentschler doesn’t exist. What then? Let’s assume Tipton doesn’t exist. Let’s assume Pierson doesn’t exist and it gets to the Supreme Court. What then? And so that’s where the constitutional argument might help. But it’s a lot.
Robert Mattingly:
Well, good.
Kevin Burke:
Yeah.
Robert Mattingly:
All right, well, let’s wrap things up. Here’s where we’re at. The question for the day was, if someone doesn’t have a license, is that admissible at trial? That was our real simple question. It does not apply to commercial motor vehicle cases or negligent hiring retention supervision type cases. But in your standard auto eight case, is it admissible?
There are several cases which we’ve covered today right on point saying it does not come in. That is true despite the very old statute. The Court of Appeals and Supreme Court have said it does not come in. So that is the answer to your question. No, it does not come in. If anybody would like to get these cases emailed to him or get any of the briefing for today’s podcast, just email myself or Kevin. If you would like CLE credit, you can do that. Just go to the KJA website. It’ll be sitting on there and you can buy that CLE credit.
Otherwise, I think we will sign off and as we always do, and I guess as Braveheart did himself, go out and find one thing that you can do to change the world.
Kevin Burke:
There you go.
Jim Ray:
Friends, this is podcast producer Jim Ray, and as Rob mentioned, we are offering CLE credit for this episode, so we are still waiting on the activity number. If you are an attorney and you would like CLE credit for having listened to this episode, go ahead and just email Robert Mattingly. His email address is robertmattinglyattorney@gmail.com. Once we have the activity number assigned, we’ll be sure to send that right over to you. As always, thanks for listening to this episode of the Legal Notepad podcast.
Robert Mattingly:
And just a reminder to all of our attorneys, these podcasts are always free, but if you want to obtain CLE credit, the Kentucky Justice Association has worked with the Kentucky Bar Association for approval of the CLEs. Again, to get that credit, you simply go to kentuckyjusticeassociation.org. That’s the KJA website. Click on education and training, select podcast, and add it to your cart.
In Closing
That’s a wrap on today’s discussion. We hope you found the discussion insightful. As always, we encourage you to share this episode with your colleagues.
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If you are an attorney and would like CLE credit for this episode, visit the Kentucky Justice Association website, click the Education and Training tab and look for the podcast.
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