Bell test in Kentucky

2025Although this “does not mean, of course, that evidence of prior acts against the same victim is automatically admissible—relevance to a material issue and probativeness must be shown, and the possibility of undue prejudice must still be considered—but our experience with these cases has taught that in most of them the Bell inquiry leads to admission.” Jenkins, 496 S.W.3d at 458 .

2025Although this “does not mean, of course, that evidence of prior acts against the same victim is automatically admissible—relevance to a material issue and probativeness must be shown, and the possibility of undue prejudice must still be considered—but our experience with these cases has taught that in most of them the Bell inquiry leads to admission.” Jenkins, 496 S.W.3d at 458 .

2025The oft applied Bell test for “determining the admissibility of other crimes evidence” asks: (1) whether the other crimes evidence is relevant for some purpose other than to prove the defendant’s criminal disposition; (2) whether the evidence of the uncharged crime is sufficiently probative of its commission by the accused to warrant its admission into evidence; and (3) whether the other crimes evidence’s potential for prejudice substantially outweigh its probative value. 875 S.W.2d at 889-91 .

2024Probativeness under the Bell test “relates to whether there is sufficient evidence that the ‘other crime, wrong, or act’ actually occurred.” Davis v. Commonwealth, 147 S.W.3d 709, 724 (Ky. 2004) (quoting Bell, 875 S.W.2d at 890 ).

2024Probativeness under the Bell test “relates to whether there is sufficient evidence that the ‘other crime, wrong, or act’ actually occurred.” Davis v. Commonwealth, 147 S.W.3d 709, 724 (Ky. 2004) (quoting Bell, 875 S.W.2d at 890 ).

2024Probativeness under the Bell test “relates to whether there is sufficient evidence that the ‘other crime, wrong, or act’ actually occurred.” Davis v. Commonwealth, 147 S.W.3d 709, 724 (Ky. 2004) (quoting Bell, 875 S.W.2d at 890 ).

2026Purcell v. Commonwealth, 149 S.W.3d 382, 399-400 (Ky. 2004).

2021See, e.g., Purcell v. Commonwealth, 149 S.W.3d 382 , 399–400 (Ky. 2004) (explaining testimony of alleged prior victims of sex offenses satisfies probative aspect of Bell test, that is “whether there is sufficient evidence that the ‘other crime, wrong, or act” actually occurred[];’”), overruled on other grounds by Commonwealth v. Prater, 324 S.W.3d 393 (Ky. 2010).

2025The second factor of the Bell inquiry is probativeness, which requires us to determine whether the trial court abused its discretion in finding that a jury “could reasonably infer that the prior bad acts occurred and that [Anderson] committed such acts.’” Leach, 571 S.W.3d at 554 (quoting Parker v. Commonwealth, 952 S.W.2d 209, 214 (Ky. 1997)).

2025The second factor of the Bell inquiry is probativeness, which requires us to determine whether the trial court abused its discretion in finding that a jury “could reasonably infer that the prior bad acts occurred and that [Anderson] committed such acts.’” Leach, 571 S.W.3d at 554 (quoting Parker v. Commonwealth, 952 S.W.2d 209, 214 (Ky. 1997)).

2025Additionally, the authorities that Bell’s brief cites to with correct information (i.e., the correct reporters, court names, years, etc.) often do not support the arguments she claims they do.5 “When counsel fail to narrow focus to specific parts of a record, or when they point to little or no persuasive legal authority, they unnecessarily tax 5 For example, Bell cites to Sexton v. Sexton, 125 S.W.3d 258 (Ky. 2004), and states that, there, “[t]he court emphasized the need for fair procedures and support to ensure that self-represented parties can adequately protect their rights.” However, Sext

2025Additionally, the authorities that Bell’s brief cites to with correct information (i.e., the correct reporters, court names, years, etc.) often do not support the arguments she claims they do.5 “When counsel fail to narrow focus to specific parts of a record, or when they point to little or no persuasive legal authority, they unnecessarily tax 5 For example, Bell cites to Sexton v. Sexton, 125 S.W.3d 258 (Ky. 2004), and states that, there, “[t]he court emphasized the need for fair procedures and support to ensure that self-represented parties can adequately protect their rights.” However, Sext

2025The second factor of the Bell inquiry is probativeness, which requires us to determine whether the trial court abused its discretion in finding that a jury “could reasonably infer that the prior bad acts occurred and that [Anderson] committed such acts.’” Leach, 571 S.W.3d at 554 (quoting Parker v. Commonwealth, 952 S.W.2d 209, 214 (Ky. 1997)).

2025The second factor of the Bell inquiry is probativeness, which requires us to determine whether the trial court abused its discretion in finding that a jury “could reasonably infer that the prior bad acts occurred and that [Anderson] committed such acts.’” Leach, 571 S.W.3d at 554 (quoting Parker v. Commonwealth, 952 S.W.2d 209, 214 (Ky. 1997)).

2025Jenkins v. Commonwealth, 496 S.W.3d 435, 458 (Ky. 2016). “[P]rior acts committed against the same victim, similar to the conduct on trial, will often if not usually, have relevance other than merely establishing a propensity to commit the crime charged, thus falling within the KRE 404(b) exception.” Gullett v. Commonwealth, 514 S.W.3d 518, 530 (Ky. 2017) (citing Driver, 361 S.W.3d at 884 ).

2025Jenkins v. Commonwealth, 496 S.W.3d 435, 458 (Ky. 2016). “[P]rior acts committed against the same victim, similar to the conduct on trial, will often if not usually, have relevance other than merely establishing a propensity to commit the crime charged, thus falling within the KRE 404(b) exception.” Gullett v. Commonwealth, 514 S.W.3d 518, 530 (Ky. 2017) (citing Driver, 361 S.W.3d at 884 ).

2025See Koester v. Koester, 569 S.W.3d 412, 414-15 (Ky. App. 2019) (citation omitted) (“It is not the function or responsibility of this court to scour the record on appeal to ensure that an issue has been preserved.”).

2021However, “[e]ven if evidence is relevant and probative, it should be excluded if its probative value is substantially outweighed by the danger of undue prejudice and confusion of issues.” Purcell, 149 S.W.3d at 400 (citing KRE 403). “[T]he trial court has a substantial amount of discretion in its performance of this KRE 403 balancing test.” Doneghy v. Commonwealth, 410 S.W.3d 95, 109 (Ky. 2013).