hearsay rule in Kentucky

2021I came to the conclusion that there had to have been some type of misconduct or I would not have received a complaint.”37 The officer then explained that “departmental policy required him to report his findings to a captain to continue with an investigation.”38 31 Id. 32 Id. 33 Id. 34 Id. at 485 . 35 Id. (emphasis added). 36 Id. 37 Id. 38 Id. 28 This Court concluded that there was little doubt that the officer’s statement “amounted to a declaration that he believed the story told by the victim,” and that in a number of cases such a declaration has been held to be error.39 The Court discussed t

2021I came to the conclusion that there had to have been some type of misconduct or I would not have received a complaint.”37 The officer then explained that “departmental policy required him to report his findings to a captain to continue with an investigation.”38 31 Id. 32 Id. 33 Id. 34 Id. at 485 . 35 Id. (emphasis added). 36 Id. 37 Id. 38 Id. 28 This Court concluded that there was little doubt that the officer’s statement “amounted to a declaration that he believed the story told by the victim,” and that in a number of cases such a declaration has been held to be error.39 The Court discussed t

2026Further, “social workers and psychologists are not qualified to testify that they believe a child has been sexually abused based on the child’s demeanor.” B.B., 7 We also note that hearsay identifying the perpetrator, which the therapist did when she repeated Child’s claim that Father was the one who touched him, does not fall within the KRE 803(4) exception for permitting hearsay made for the purposes of medical treatment. [W]e reiterate what was made clear over a decade ago, that “we no longer recognize a special exception to the hearsay rule which allows medical providers to testify in cour

2024KRE 803(4) provides a hearsay exception allowing for admission of “[s]tatements made for purposes of medical treatment or diagnosis and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably 5 Kentucky Rules of Evidence. 22 pertinent to treatment or diagnosis.” Typically, however, the identity of a perpetrator “is not relevant to treatment or diagnosis.” Colvard v. Commonwealth, 309 S.W.3d 239, 244 (Ky. 2010).

2014The “state of mind” exception to the hearsay rule, KRE 803(3), allows for the admission of testimony concerning “the declarant’s then existing state of mind, emotion, sensation, physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health).... ” In Prater v. Cabinet for Human Res., 954 S.W.2d 954, 960 (Ky.1997), an action for involuntary termination of parental rights, the Kentucky Supreme Court held that a foster parent’s testimony of her observations of the children’s out-of-court expressions of fear of dark rooms, hot baths, other persons’ hands, and of

2006In Prater v. Cabinet for Human Resources, 954 S.W.2d 954 (Ky.1997), an appeal from a judgment terminating parental rights, we held that a physician diagnosing and treating a child for suspected abuse could testify to the child’s history with respect to the etiology of his injuries and, thus, that the physician’s report of the child’s history was admissible under the hearsay exception for business records, *344 KRE 803(6).

2025This Court has previously determined “[w]hen incriminating statements are made in the presence of an accused under circumstances that would normally call for his denial of the statements, and it is clear that the accused understood the statements, yet did not contradict them, the statements are admissible as tacit, or adoptive, admissions.” Marshall v. Commonwealth, 60 S.W.3d 513, 521 (Ky. 2001). 34 We also note that the call was preceded by an automated warning that it was not privileged and “subject to recording and monitoring.” Hollingsworth was well aware and well-warned that law enforceme

2009Marshall v. Commonwealth, 60 S.W.3d 513, 519 (Ky.2001) (citing Justice v. Commonwealth, 987 S.W.2d 306, 313 (Ky.1998); KRE 804(b)) (“In order for the hearsay exception for statements against penal interest to apply, the proponent of the statement must show that the declar-ant is unavailable.”).

2009"There is no recognized exception to the hearsay rule for social workers or the results of their investigations.'" Sharp v. Commonwealth, 849 S.W.2d 542, 546 (Ky.1993) ( quoting Souder v. Commonwealth, 719 S.W.2d 730, 734 (Ky.1986), overruled on other grounds by B.B. v. Commonwealth, 226 S.W.3d 47 (Ky.2007)).

2009“There is no recognized exception to the hearsay rule for social workers or the results of their investigations.’ ” Sharp v. Commonwealth, 849 S.W.2d 542, 546 (Ky.1993) (quoting Souder v. Commonwealth, 719 S.W.2d 730, 734 (Ky.1986), overruled on other grounds by B.B. v. Commonwealth, 226 S.W.3d 47 (Ky.2007)).

2024We have previously stated that 4 Under KRE 801A(a)(1), “[a] statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the declarant testifies at the trial or hearing and is examined concerning the statement, with a foundation laid as required by KRE 613, and the statement is . . . [i]nconsistent with the declarant’s testimony[.]” 10 “[a]n inconsistent statement for purposes of KRE 801A(a)(1) includes a witness’s claimed inability to recall making the statement.” Downs v. Commonwealth, 620 S.W.3d 604 , 617 (Ky. 2020) (citing McAtee v. Commonwealth, 4

2024We have previously stated that 4 Under KRE 801A(a)(1), “[a] statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the declarant testifies at the trial or hearing and is examined concerning the statement, with a foundation laid as required by KRE 613, and the statement is . . . [i]nconsistent with the declarant’s testimony[.]” 10 “[a]n inconsistent statement for purposes of KRE 801A(a)(1) includes a witness’s claimed inability to recall making the statement.” Downs v. Commonwealth, 620 S.W.3d 604 , 617 (Ky. 2020) (citing McAtee v. Commonwealth, 4

2024Under KRE 801A(a)(2), a statement that would otherwise be inadmissible hearsay can be admissible if it is “[c]onsistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive[.]” “The hearsay exception in KRE 801A(a)(2) is only available if the prior consistent statement was made ‘before the alleged motive to fabricate came into existence.’” Hoff v. Commonwealth, 394 S.W.3d 368, 380 (Ky. 2011) (quoting Slaven v. Commonwealth, 962 S.W.2d 845, 858 (Ky. 1997)).

2011The hearsay exception in KRE 801A(a)(2) is only available if the prior consistent statement was made “before the alleged motive to fabricate came into existence.” Slaven v. Commonwealth, 962 S.W.2d 845, 858 (Ky.1997).

2024Likewise, a witness’s prior consistent statements made “post- motive” are naturally not barred by the hearsay rule when they do not constitute hearsay – namely when “offered primarily for rehabilitative, not substantive purposes.” Noel v. Commonwealth, 76 S.W.3d 923, 929 (Ky. 2002).

2023Likewise, a witness’s prior consistent statements made “post- motive” are naturally not barred by the hearsay rule when they do not constitute hearsay – namely when “offered primarily for rehabilitative, not substantive purposes.” Noel v. Commonwealth, 76 S.W.3d 923, 929 (Ky. 2002).

2004Moseley v. Commonwealth, Ky., 960 S.W.2d 460, 462 (1997).

2001Cf. Moseley v. Commonwealth, Ky., 960 S.W.2d 460, 461 (1997) (an out-of-court statement must satisfy the requirements of both Article IV and Article VIII of the Kentucky Rules of Evidence).

2005NOTES [1] Taylor's two death sentences for the kidnapping convictions were reversed on direct appeal in Taylor v. Commonwealth, 821 S.W.2d 72, 77 (Ky.1990). [2] Taylor, 821 S.W.2d 72 . [3] E.g., Averitte v. Hutchinson, 420 S.W.2d 581, 582 (Ky.1967). [4] 488 S.W.2d 338 (Ky.1972). [5] Id. at 339 . [6] Id. [7] 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). [8] Id. at 1365. [9] Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). [10] KRE 801A(a)(1) allows a statement into evidence that would otherwise be excluded by the hearsay rule because the previous statement

2005NOTES [1] Taylor's two death sentences for the kidnapping convictions were reversed on direct appeal in Taylor v. Commonwealth, 821 S.W.2d 72, 77 (Ky.1990). [2] Taylor, 821 S.W.2d 72 . [3] E.g., Averitte v. Hutchinson, 420 S.W.2d 581, 582 (Ky.1967). [4] 488 S.W.2d 338 (Ky.1972). [5] Id. at 339 . [6] Id. [7] 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). [8] Id. at 1365. [9] Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). [10] KRE 801A(a)(1) allows a statement into evidence that would otherwise be excluded by the hearsay rule because the previous statement

2025A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the declarant testifies at the trial or hearing and is examined concerning the statement, with a foundation laid as required by KRE 613, and the statement is: (1) Inconsistent with the declarant’s testimony[.] As explained in Thurman, even if a party’s primary purpose in calling a witness was to impeach that witness with her prior inconsistent statements, “the evidence contained in those statements was not ‘otherwise inadmissible.’” Thurman, 975 S.W.2d at 894 (quoting United States v. Morla

2005KRE 805; see Thurman v. Commonwealth, 975 S.W.2d 888, 893 (Ky.1998) (double hearsay admissible only if each part of the combined statements conforms with an exception to the hearsay rule).

2025The co-conspirator exception requires that the proponent prove, by a preponderance of the evidence, the existence of three basic elements: “(1) a conspiracy existed, (2) both the defendant and the declarant were participants in the conspiracy, and (3) the statement was made during and in furtherance of the conspiracy.” Gerlaugh v. Commonwealth, 156 S.W.3d 747, 752 (Ky. 2005).

2008This Court recently noted that "[o]ne of the objectives of the drafters of the Kentucky ' KRE 801 A(b)(5) provides that "[a] statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the statement is offered against a party and is . . . [a] statement by a coconspirator of a party during the course and in furtherance of the conspiracy ." Rules of Evidence was to achieve uniformity with the Federal Rules of Evidence (FRE) to the extent possible and to depart from the Federal Rules only for good reason." Gerlaugh v. Commonwealth , 156 S.W.3d 747, 753 (

2022As such, we decline to 15 Rice v. Commonwealth, No. 2004-SC-1076-MR, 2006 WL 436123 at *8 (Ky. Feb. 23, 2006) (citing Osborne v. Commonwealth, 867 S.W.2d 484 , 491–92 (Ky. App. 1993)). 16 Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007). 17 Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). 11 address the Commonwealth’s arguments regarding the hearsay exception for prior consistent statements and review only those arguments presented to the trial court.

2008A statement is not excluded by the hearsay rule, even though the declarant is available as a witness, if the statement is offered against a party and is . . . a statement of which the party has manifested an adoption or belief in its truth." 36 Goodyear Tire & Rubber Co. v Thompson , 11 S.W.3d 575, 577 (Ky. 2000) ; Commonwealth v. English , 993 S.W.2d 941, 945 (Ky .1999) . 18 unsupported by sound legal principles."3' We conclude that the trial court did not abuse its discretion by refusing to admit the prosecutor's statements from Gary's trial .

2006Crowe v. Commonwealth, 38 S.W.3d 379, 383 (Ky.2001).

2006Crowe v. Commonwealth, 38 S.W.3d 379, 383 (Ky.2001).

2022While we do not denigrate the holding in Dickerson v. Commonwealth, 174 S.W.3d 451 (Ky. 2005), we do not believe it is controlling in this case. “[W]here constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

2021While we do not denigrate the holding in Dickerson v. Commonwealth, 174 S.W.3d 451 (Ky. 2005), we do not believe it is controlling in this case. “[W]here constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

1994I believe that the admission of this testimony came within the purview of the exceptions to the hearsay rule announced in Drumm v. Commonwealth, Ky., 783 S.W.2d 380 (1990) because the medical report was made for the purpose of medical diagnosis and treatment.

1994I believe that the admission of this testimony came within the purview of the exceptions to the hearsay rule announced in Drumm v. Commonwealth, Ky., 783 S.W.2d 380 (1990) because the medical report was made for the purpose of medical diagnosis and treatment.

2005Subsequent to our decision in Taylor II , the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), which not only reaffirmed the plurality opinion in Lilly , id. at 55 , 124 S.Ct. at 1367 ("[A]ccomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule.") (quoting Lilly, 527 U.S. at 134 , 119 S.Ct. at 1899 ), this time in the context of a majority opinion, but also overruled Roberts, id. at 69, 124 S.Ct. at 1374 , thus removing any remaining underpinning for the admission

2005Subsequent to our decision in Taylor II , the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), which not only reaffirmed the plurality opinion in Lilly , id. at 55 , 124 S.Ct. at 1367 ("[A]ccomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule.") (quoting Lilly, 527 U.S. at 134 , 119 S.Ct. at 1899 ), this time in the context of a majority opinion, but also overruled Roberts, id. at 69, 124 S.Ct. at 1374 , thus removing any remaining underpinning for the admission

2023Barrett correctly argues that KRE 612 “codifies the common-law rule allowing any writing to be used to refresh a witness’s memory if necessary.” Martin v. Commonwealth, 456 S.W.3d 1, 15 (Ky. 2015). “[W]hen that witness refreshes her memory under this rule, the testimony elicited thereafter ‘is the product of the refreshed memory, not the writing used to refresh it.’ As a result, the document itself is not admissible, and the hearsay rule does not apply.” Id.

2023Barrett correctly argues that KRE 612 “codifies the common-law rule allowing any writing to be used to refresh a witness’s memory if necessary.” Martin v. Commonwealth, 456 S.W.3d 1, 15 (Ky. 2015). “[W]hen that witness refreshes her memory under this rule, the testimony elicited thereafter ‘is the product of the refreshed memory, not the writing used to refresh it.’ As a result, the document itself is not admissible, and the hearsay rule does not apply.” Id.

2024Under KRE 801A(a)(2), a statement that would otherwise be inadmissible hearsay can be admissible if it is “[c]onsistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive[.]” “The hearsay exception in KRE 801A(a)(2) is only available if the prior consistent statement was made ‘before the alleged motive to fabricate came into existence.’” Hoff v. Commonwealth, 394 S.W.3d 368, 380 (Ky. 2011) (quoting Slaven v. Commonwealth, 962 S.W.2d 845, 858 (Ky. 1997)).

2022“Generally, in a child sex abuse case, only those statements that relate to the patient’s physical injuries and what caused them are pertinent to treatment and diagnosis under KRE 803(4).” Hoff v. Commonwealth, 394 S.W.3d 368, 374 (Ky. 2011). “[T]he general rule is that the identity of the perpetrator is not relevant to treatment or diagnosis.” Colvard, 309 S.W.3d at 244 (citation omitted).

2021Because the investigation report is riddled with statements from twelve different witnesses, it clearly must overcome the rule against “double hearsay.” “[H]earsay within hearsay, i.e. ‘double hearsay,’ is inadmissible unless -19- each part of the combined statements conforms with a recognized exception to the hearsay rule.” Manning v. Commonwealth, 23 S.W.3d 610, 614 (Ky. 2000).

2007See Manning v. Commonwealth, 23 S.W.3d 610, 613-14 (Ky.2000).

1998In Buckler, supra, this Court established the following standard by which to measure the admissibility of opinion testimony that is based, in part, on hearsay evidence. [W]e adopt as an exception to the hearsay rule in Kentucky that an expert may properly express an opinion based upon information supplied by third parties which is not in evidence, but upon which the expert customarily relies in the practice of his profession.

1998In Buckler, supra , this Court established the following standard by which to measure the admissibility of opinion testimony that is based, in part, on hearsay evidence. [W]e adopt as an exception to the hearsay rule in Kentucky that an expert may properly express an opinion based upon information supplied by third parties which is not in evidence, but upon which the expert customarily relies in the practice of his profession.

2006Due process requires only that the evidence be “reliable,” and “reliability can be inferred without more in a case where evidence falls within a firmly rooted exception to the hearsay rule.” Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531, 2539 , 65 L.Ed.2d 597 (1980), overruled as applied to criminal cases by Crawford.

2006Due process requires only that the evidence be “reliable,” and “reliability can be inferred without more in a case where evidence falls within a firmly rooted exception to the hearsay rule.” Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531, 2539 , 65 L.Ed.2d 597 (1980), overruled as applied to criminal cases by Crawford.

2021Such statements were essential for the diagnosis and treatment of Child’s PTSD, and they clearly fit within the hearsay exception. 9 Turning to the specific issue of whether the trial court properly allowed Dykus’ testimony that identified the Father as Child’s abuser, we reiterate what was made clear over a decade ago, that “we no longer recognize a special exception to the hearsay rule which allows medical providers to testify in court to the hearsay statements of a victim of sexual offenses which identify the alleged perpetrator because that identification is not pertinent to the medical tr

2021Such statements were essential for the diagnosis and treatment of Child’s PTSD, and they clearly fit within the hearsay exception. 9 Turning to the specific issue of whether the trial court properly allowed Dykus’ testimony that identified the Father as Child’s abuser, we reiterate what was made clear over a decade ago, that “we no longer recognize a special exception to the hearsay rule which allows medical providers to testify in court to the hearsay statements of a victim of sexual offenses which identify the alleged perpetrator because that identification is not pertinent to the medical tr

2001The statement against penal interest exception to the hearsay rule was adopted by this Court in Crawley v. Commonwealth, Ky., 568 S.W.2d 927 (1978).

2001The statement against penal interest exception to the hearsay rule was adopted by this Court in Crawley v. Commomvealth, Ky., 568 S.W.2d 927 (1978).

1997Although appellant makes a thoughtful argument, it fails to overcome KRE 801A(a)(3) which allows as an exception to the hearsay rule statements “of identification of a person made after perceiving the person” but only if “the declarant testifies at the trial or hearing and is examined concerning the statement.” A well-regarded Kentucky case directly on point is Preston v. Commonwealth, Ky., 406 S.W.2d 398 (1966), wherein the trial court permitted a witness to testify as to prior statements of identification of the defendants by two individuals who had witnessed the commission of the offense.

1986See also, Preston v. Commonwealth, Ky., 406 S.W.2d 398 (1966) and Wilson v. Commonwealth, Ky., 492 S.W.2d 450 (1973), recognizing that spontaneous statements made by bystanders who are not available to testify are admissible under this exception to the hearsay rule.

2025See Askew v. Commonwealth, 768 S.W.2d 51, 56 (Ky. 1989) (explaining the Jett rule). 11 As explained in Thurman, “even if the Commonwealth’s ‘primary purpose’ in calling [child] as a witness had been to impeach her with her prior inconsistent statements, the evidence contained in those statements was not ‘otherwise inadmissible.’” Thurman, 975 S.W.2d at 894 (quoting United States v. Morlang, 531 F.2d 183 (4th Cir. 1975)).

2024However, Hampton testified not only that she could not remember making the statement but also that she could not remember even meeting with the defense investigator, could not remember attending any gathering where Posey was also present, and could not remember ever hearing Posey say that he “pulled the trigger.” The evidence Roberson sought to introduce through Shoemaker’s testimony is exactly that prohibited by Askew v. Commonwealth, 768 S.W.2d 51 , 5 which was cited by the trial court in makings its ruling.