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Can A Criminal Defendant Access A KASPER Report?

A recent Supreme Court of Kentucky decision from Kenton County confirms that a criminal defendant is entitled to discovery of his, and co-defendant's KASPER reports.  In Commonwealth v. Cole, 2008-SC-508-MR, together with other defendants' Judge Barteltt , Cox and Young, the Court affirmed an order requiring that a KASPER record be produced for in camera review after the Defense made a suffiient showing that the records "may contain information which is relevant or exculpatory to the Defense." The Cabinet for Families and Children filed a writ and appealed the decision, citing KRS 218A.202 regarding prohibition on disclosure of KASPER reports.  While true that the statute disclosure is prohibited unless specifically authorized, the Court reasoned that a criminal defendant has a constututional right to discover exculpatory documents, even if those documents are confidential or if their disclosure is prohibited by rule or statute. Citing Pennsylvania v. Ritchie, 480 U.S. 39 (1987), the U.S. Supreme Court has held that a defendant's right to discovery exculpatory evidence in the government's possession prevails over a qualified privilege.  Thanks for W. Robert Lotz, criminal attorney for Larry Cole, for this new information and the successful appeal of this important issue. If you have been charged with a crime and believe a KASPER report may benefit your defense, contact Michael W. Bouldin at [email protected] or 859--581-6453.

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