As this Court has previously held, in certain circumstances, the requirements of due process and fundamental fairness can require that a criminal defendant be allowed to have a witness against him independently examined by a psychiatrist or psychologist. See Mack v. Commonwealth, 860 S.W.2d 275, 277 (Ky.1993). The trial court was aware of Mack, but criticized what he believed to be an inconsistency in the opinion, noting that on the one hand the defendant was entitled to have the witness examined as to possible mental “concoction or transference,” id., but on the other hand evidence of post-traumatic stress and transference was inadmissible because the defense had failed to establish those as proper medical diagnoses, id. at 278.

Clearly, we are not dealing with a party or a person under the legal custody of a party. Although CR 35.01 is referred to in Mack v. Commonwealth, Ky., 860 S.W.2d 275 (1993) and Turner v. Commonwealth, Ky., 767 S.W.2d 557 (1988), cert. denied, 493 U.S. 901, 110 S.Ct. 260, 107 L.Ed.2d 209 (1989), we held in those cases that the rule does not expressly provide for an examination of a prosecuting witness who is not a party. Bart points out, and correctly so, that we did hold in Mack and Turner that although CR 35.01 does not expressly provide for an examination of a nonparty prosecuting witness, due process and fundamental fairness may, depending upon the circumstances, entitle a defendant to have an alleged victim examined by an independent expert, if not a defense expert.

He contends the actions of the Commonwealth negated the effectiveness and purpose of the missing evidence instruction and permitted the Commonwealth to enjoy an unfair advantage. Baker asserts the holdings in Mack v. Commonwealth, 860 S.W.2d 275 (Ky. 1993), Moore v. Commonwealth, 634 S.W.2d 426 (Ky. 1982), and Nolan v. Commonwealth, 261 Ky. 384, 87 S.W.2d 946 (1935), condemned similar inappropriate commentary by the Commonwealth during closing argument regarding evidence not in the record and mandate reversal in this case. We disagree.

Weckman compares his case to Mack v. Commonwealth, 860 S.W.2d 275, 277 (Ky. 1993). In Mack, the trial court denied the defendant's request to have the child victim psychologically examined.

However, "evidence that has been excluded by the trial judge cannot be referred to in closing argument." Barnes, 91 S.W.3d at 569 (citing Mack v. Commonwealth, 860 S.W.2d 275, 276-77 (Ky. 1993); Moore v. Commonwealth, 634 S.W.2d 426, 438 (Ky. 1982); Nolan v. Commonwealth, 87 S.W.2d 946, 950 (Ky. 1936)). Further, Hodge has a Sixth Amendment right to "have compulsory process for obtaining witnesses in his favor."

Kuhbander claims that the prosecutor's objection improperly informed the jury that there was additional evidence about Kuhbander's past that they were not allowed to hear. In support of this argument, Kuhbander cites the Court to Mack v. Commonwealth, 860 S.W.2d 275, 277 (Ky. 1993), wherein the prosecutor, during closing argument of the penalty phase, referred to the guilt phase and stated that there was a "vast store of incriminating evidence," against Mack which the jury had not been able to hear due to "rules of evidence" and "legal proceedings." This Court reversed, concluding that "[a] defendant cannot confront phantom witnesses, or cross-examine real witnesses on a 'full story' consisting of mere suggestion."

Robert G. Lawson, The Kentucky Evidence Law Handbook § 4.00[2][b] (5th ed. 2013) (citing United States v. Tate, 915 F.2d 400, 401 (8th Cir. 1990), and United States v. Thornton, 197 F.3d 241, 252 (7th Cir. 1999)). See Mack v. Commonwealth, 860 S.W.2d 275 (Ky. 1993) (holding that prosecutor's statement to jury that it had not heard the full story was reversible error). The prosecutor here did not indulge in either of these forbidden types of vouching.

The rationale for such a rule is to avoid the suggestion that the prosecutor has knowledge of facts not presented to the jury which bear on the witness's credibility. See Mack v. Commonwealth, 860 S.W.2d 275 (Ky. 1993). On the other hand, the prosecutor is allowed great leeway in closing argument to comment on the evidence.

Bart v. Commonwealth, Ky., 951 S.W.2d 576, 578 (1997). While we recognize that this Court has held that "due process and fundamental fairness may, depending on the circumstances, entitle the defendant to have the alleged victim examined by an independent expert," Mack v. Commonwealth, Ky., 860 S.W.2d 275, 277 (1993) (emphasis added), "the critical question is whether the evidence sought by the appellant is of such importance to his defense that it outweighs the potential for harm." Turner v. Commonwealth, Ky., 767 S.W.2d 557, 559 (1988).

Accordingly, if the Commonwealth can demonstrate "good cause," it should be permitted to obtain access to the defendant for the purpose of having its retained expert conduct a competency evaluation. Bart v. Commonwealth, Ky., 951 S.W.2d 576, 578 (1997); Mack v. Commonwealth, Ky., 860 S.W.2d 275, 277 (1993); Turner v. Commonwealth, Ky., 767 S.W.2d 557, 559 (1989) ("CR 35.01 provides that when the mental or physical condition of a party or person in the control of a party, is in controversy, the court may order a physical examination. The Commonwealth points out that this rule is not expressly applicable to this case because the four-year-old child is not a party nor is she under the control of a party.").