palpable error in Kentucky

2026“A palpable error is one resulting in ‘manifest injustice,’ i.e. a ‘probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due process of law.’” Hunt v. Commonwealth, 326 S.W.3d 437, 440 (Ky. 2010) (citing Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006)) (emphasis omitted).

2026We reverse under the palpable error standard only when a “manifest injustice has resulted from the error.” RCr9 10.26. “[T]he required showing is probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).

2026“A palpable error ‘must involve prejudice more egregious than that occurring in reversible error.’” Id. (quoting Ernst v. Commonwealth, 160 S.W.3d 744, 758 (Ky. 2005)).

2026See, e.g., Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (holding that “what a palpable error analysis boils down to is whether the reviewing court believes there is a -13- substantial possibility that the result in the case would have been different without the error”) (internal quotation marks and citations omitted).

2026“A palpable error must be so grave in nature that if it were uncorrected, it would seriously affect the fairness of the proceedings.” Id.

2026“A palpable error ‘must involve prejudice more egregious than that occurring in reversible error.’” Id. (quoting Ernst v. Commonwealth, 160 S.W.3d 744, 758 (Ky. 2005)).

2026As CR 61.02 states, “[a] palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.” “Generally, a palpable error affects the substantial rights of the party only if it is more likely than ordinary error to have affected the judgment.” Roberson v. Commonwealth, 694 S.W.3d 272 , 287 (Ky. 2024) (quoting Martin v. Commonwealth, 409 S

2024Generally, a palpable error affects the substantial rights of the party only if it is more likely than ordinary error to have affected the judgment.” Martin v. Commonwealth, 409 S.W.3d 340, 344 (Ky. 2013) (internal citations and quotation marks omitted).

2026Generally, a palpable error “affects the substantial rights of a party” only if “it is more likely than ordinary error to have affected the judgment.” We note that an unpreserved error that is both palpable and prejudicial, still does not justify relief unless the reviewing court further determines that it has resulted in a manifest injustice; in other words, unless the error so seriously affected the fairness, integrity, or public reputation of the proceeding as to be “shocking or jurisprudentially intolerable.” Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009) (citations omitted). 1 Dau

2024He concedes these arguments are unpreserved and requests palpable error review under RCr 4 10.26, which provides: A palpable error which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error. “‘Manifest injustice’ is error [that] so seriously affect[s] the fairness, integrity, or public reputation of the proceeding as to be ‘shocking or jurisprudentially intolerable.’” Davidson v. C

2026A palpable error is one . . . that “affects the substantial rights of a party” and will result in “manifest injustice” if not considered by the court, and “[w]hat it really boils down to is that if upon a consideration of the whole case this court does not believe there is a substantial possibility that the result would have been any different, the irregularity will be held nonprejudicial.” Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003).

2026“Thus, what a palpable error analysis ‘boils down to’ is whether the reviewing court believes there is a ‘substantial possibility’ that the result in the case would have been different without the error.” Id. (citing Schoenbachler v. Commonwealth, 95 S.W.3d 830, 836 (Ky. 2003)).

2025Under RCr 10.26, “[a] palpable error which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.” Palpable error review allows reversal when “manifest injustice has resulted from the error.” Elery, 368 S.W.3d at 98 (quoting RCr 10.26).

2025Under RCr 10.26, “[a] palpable error which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.” Palpable error review allows reversal when “manifest injustice has resulted from the error.” Elery v. Commonwealth, 368 S.W.3d 78, 98 (Ky. 2012) (quoting RCr 10.26).

2026In general, a palpable error affects the substantial rights of a party only if “it is more likely than ordinary error to have affected the judgment.” Id. (quoting Ernst v. Commonwealth, 160 S.W.3d 744, 762 (Ky. 2005)).

2026However, he requests palpable error review. [A]n unpreserved error may be noticed on appeal only if the error is “palpable” and “affects the substantial rights of a party,” and even then relief is appropriate only “upon a determination that manifest injustice has resulted from the error.” An error is “palpable,” . . . only if it is clear or plain under current law, and in general a palpable error “affects the substantial rights of a party” only if “it is more likely than ordinary error to have affected the judgment.” Commonwealth v. Jones, 283 S.W.3d 665, 668 (Ky. 2009) (internal citations omi

2025A palpable error is one that is “easily perceptible, plain, obvious and readily noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (quoting Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997)).

2024A palpable error is “easily perceptible, plain, obvious and readily noticeable.” Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006) (quoting Burns v. Level, 957 S.W.2d 218, 222 (Ky. 1997)).

2024He concedes these arguments are unpreserved and requests palpable error review under RCr 4 10.26, which provides: A palpable error which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error. “‘Manifest injustice’ is error [that] so seriously affect[s] the fairness, integrity, or public reputation of the proceeding as to be ‘shocking or jurisprudentially intolerable.’” Davidson v. C

2021“Palpable error relief is available under RCr 10.26 only upon a determination that manifest injustice has resulted from the error. ‘Manifest injustice’ is ‘error [that] so seriously affect[s] the fairness, integrity, or public reputation of the proceeding as to be ‘shocking or jurisprudentially intolerable.’” Davidson v. Commonwealth, 548 S.W.3d 255, 261 (Ky. 2018) (quoting Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009)). 18 Wadley conducted a forensic interview of A.S. at the request of Det.

2026“Fundamentally, a palpable error determination turns on whether the court believes there is a ‘substantial possibility’ that the result would have been different without the error.” Hibdon v. Hibdon, 247 S.W.3d 915, 918 (Ky. App. 2007) (citation omitted).

2026“Fundamentally, a palpable error determination turns on whether the [C]ourt believes there is a substantial possibility that the result would have been different without the error.” Hibdon v. Hibdon, 247 S.W.3d 915, 918 (Ky. App. 2007) (internal quotation marks and citation omitted).

2025“In order to demonstrate an error rises to the level of a palpable error, the party claiming palpable error must show a probability of a different result or [an] error so fundamental as to threaten a defendant’s entitlement to due process of law.” Allen v. Commonwealth, 286 S.W.3d 221, 226 (Ky. 2009) (internal quotation marks and citation omitted).

2023“In order to demonstrate an error rises to the level of a palpable error, the party claiming palpable error must show a probability of a different result or [an] error so fundamental as to threaten a defendant’s entitlement to due process of law.” Allen v. Commonwealth, 286 S.W.3d 221, 226 (Ky. 2009) (internal quotation marks and citation omitted).

2021Furthermore, an appellant claiming palpable error review must show that the error was more likely than ordinary error to have affected the jury.” Boyd v. Commonwealth, 439 S.W.3d 126, 129-30 (Ky. 2014).

2019Furthermore, an appellant claiming palpable error must show that the error was more likely than ordinary error to have affected the jury.” Boyd v. Commonwealth, 439 S.W.3d 126 , 129- 30 (Ky. 2014).

2026As the trial court observed in its Order denying the motion to suppress, “[t]here is no claim that the traffic stop was excessive in duration or that the troopers were sluggish in executing their duties.” Although Wells does not request palpable error review in his Appellant’s brief, he does so in his reply brief, stating that “if this court believes the issue is unpreserved Wells request palpable error [sic].” Under RCr[1]10.26, this Court may consider a palpable error “which affects the substantial rights of a party . . . even though insufficiently . . . preserved for review, and appropriate

2023Christopher’s briefing error runs in the face of longstanding jurisprudence that “[a]bsent extreme circumstances amounting to a substantial 9 CR 61.02 reads: A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error. 10 Kentucky Rules of Criminal Procedure. -12- miscarriage of justice, an appellate court will not engage in palpa

2023Under the palpable error standard and in this context, a defendant must show a likelihood—“a reasonable possibility”—that, but for the error, a different sentence would have been imposed.63 The Commonwealth 62 See Martin v. Commonwealth, 409 S.W.3d 340, 348 (Ky. 2013); Blane v. Commonwealth, 364 S.W.3d 140, 152 (Ky. 2012), abrogated on other grounds by Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015); Chavies v. Commonwealth, 354 S.W.3d 103, 115 (Ky. 2011) (same); Cook v. Commonwealth, 129 S.W.3d 351, 365 (Ky. 2004) (citations omitted); Robinson v. Commonwealth, 926 S.W.2d 853, 854 (Ky. 1996). 6

2023Under the palpable error standard and in this context, a defendant must show a likelihood—“a reasonable possibility”—that, but for the error, a different sentence would have been imposed.63 The Commonwealth 62 See Martin v. Commonwealth, 409 S.W.3d 340, 348 (Ky. 2013); Blane v. Commonwealth, 364 S.W.3d 140, 152 (Ky. 2012), abrogated on other grounds by Roe v. Commonwealth, 493 S.W.3d 814 (Ky. 2015); Chavies v. Commonwealth, 354 S.W.3d 103, 115 (Ky. 2011) (same); Cook v. Commonwealth, 129 S.W.3d 351, 365 (Ky. 2004) (citations omitted); Robinson v. Commonwealth, 926 S.W.2d 853, 854 (Ky. 1996). 6

2022For this Court to find that a palpable error occurred, it must determine that the error in question resulted in “manifest injustice.” Kingery v. Commonwealth, 396 S.W.3d 824, 831 (Ky. 2013).

2020Palpable error may be found when it results in manifest injustice, and “[m]anifest injustice is found if the error seriously affected the fairness . . . of the proceeding.” Kingrey v. Commonwealth, 396 S.W.3d 824, 831 (Ky. 2013) (citation omitted).

2025See Ford v. Commonwealth, 628 S.W.3d 147 , 155 (Ky. 2021); CR 61.02 (“A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.”); Hibdon v. Hibdon, 247 S.W.3d 915, 918 (Ky. App. 2007) (an error is palpable if it is “easily perceptible, plain, obvious and . . . so serious that it would seriously affect the fairness to a party i

2025See J.P.T., 689 S.W.3d at 153 (citing Ford v. Commonwealth, 628 S.W.3d 147 , 155 (Ky. 2021)) (“[An] argument failing to inform appellate court how issue was preserved and where to find it in record can be treated as unpreserved.”); CR2 61.02 (“A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error.”). 2 Kentucky Rules of Civi

2024Ultimately, “[m]anifest injustice is found if the error seriously affected the fairness, integrity, or public reputation of the proceeding.” Kingrey v. Commonwealth, 396 S.W.3d 824, 831 (Ky. 2013) (quoting McGuire v. Commonwealth, 368 S.W.3d 100, 112 (Ky. 2012)).

2023Kiper, supra. Under the palpable error standard “reversal is warranted if a manifest injustice has resulted from the error, which requires a showing of the probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due 1 Kentucky Rules of Criminal Procedure. -5- process of law.” McGuire v. Commonwealth, 368 S.W.3d 100, 112 (Ky. 2012) (internal quotation marks and citations omitted).

2025A palpable error is a mistake “so egregious that it jumps off the page . . . and cries out for relief.” Chavies, 374 S.W.3d at 323 (internal quotation marks and citation omitted). 1.

2022“It should be so 12 RCr 10.26 states A palpable error which affects the substantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error. 18 egregious that it jumps off the page . . . and cries out for relief.” Chavies v. Commonwealth, 374 S.W.3d 313, 323 (Ky. 2012).

2025We remain mindful “the threshold of palpable error must be very high” and indeed, such an error “should be so egregious that it jumps off the page” and “cries out for relief.” Alford v. Commonwealth, 338 S.W.3d 240, 251 (Ky. 2011) (Cunningham, J., concurring).

2020Justice Cunningham, in his concurring opinion in Alford v. Commonwealth, 338 S.W.3d 240, 251 (Ky. 2011), once described the threshold for palpable error: “It should be so egregious that it jumps off the page . . . and cries out for relief.” For his first allegation of error, Hunter contends the trial court improperly denied his motions for a directed verdict of acquittal because the prosecution’s timeline does not fit with the incubation period of gonorrhea.

2026Under the palpable error standard, another element of “manifest injustice” is that in order to reverse on such grounds, “a substantial possibility [must] exist[] that the result of the trial would have been different.” Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky. 1997) (citation omitted).

2011A palpable error is one that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Brock v. Commonwealth, 947 S.W.2d 24, 28 (Ky.1997).

2025As such, this Court will conduct a palpable error review of Dominic’s contention that there was insufficient evidence to convict him of Burglary in the Second Degree as the Commonwealth failed to prove an essential element of the crime (i.e., that Dominic entered Melissa and Gary’s home with the intent to commit a crime). 4 Kentucky Rules of Criminal Procedure. -4- The standard for a trial court considering a directed verdict is that the court “must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth.” Williams, 706 S.W.3d at 185 (quoting Commonwealth v. Benh

2022This issue was unpreserved.29 Lynch has requested review for palpable error.30 As this Court explained in Wahl v. Commonwealth: 28 Id. 29 RCr 9.22. 30 RCr 10.26. 18 Palpable error is one “easily perceptible, plain, obvious and readily noticeable.” “[T]he required showing is probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law.” Our “focus is on what happened and whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process.”31 KRS 524.100 states: (1) A person is guilty o

2026When we engage in palpable error review, our “focus is on what happened and whether the defect is so 9 Kentucky Rules of Criminal Procedure. -11- manifest, fundamental and unambiguous that it threatens the integrity of the judicial process.” Baumia v. Commonwealth, 402 S.W.3d 530, 542 (Ky. 2013).

2021“We will reverse under the palpable error standard only when a ‘manifest injustice has resulted from the error.’” Baumia v. Commonwealth, 402 S.W.3d 530, 542 (Ky. 2013) (citing RCr1 10.26). “[T]he required showing is probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).

2015"In determining whether an error is palpable, 'an appellate court must consider whether on the whole case there is a substantial possibility that the result would have been any different."' Commonwealth v. Pace, 82 S.W.3d 894, 895 (Ky. 2002) (citing Commonwealth v. McIntosh, 646 S.W.2d 43 . 45 (Ky. 1983)). 14 We will not examine whether any error occurred in these instances, but only, if there was an error, if it rose to the level of palpable error. a.

2015"In determining whether an error is palpable, 'an appellate court must consider whether on the whole case there is a substantial possibility that the result would have been any different."' Commonwealth v. Pace, 82 S.W.3d 894, 895 (Ky. 2002) (citing Commonwealth v. McIntosh, 646 S.W.2d 43 . 45 (Ky. 1983)). 14 We will not examine whether any error occurred in these instances, but only, if there was an error, if it rose to the level of palpable error. a.

2010But see Potts v. Commonwealth, 172 S.W.3d 345 (Ky.2005) (holding that unpreserved directed verdict claims are to be reviewed under the palpable error standard and that failures of proof do not necessarily meet that standard).

2010But see Potts v. Commonwealth, 172 S.W.3d 345 (Ky. 2005) (holding that unpreserved directed verdict claims are to be reviewed under the palpable error standard and that failures of proof do not necessarily meet that standard).

2026“As this Court has repeatedly held, double jeopardy claims fall under the palpable error rule because this Court ‘do[es] not want to let stand a conviction possibly tainted by double jeopardy.’” Cardine v. Commonwealth, 283 S.W.3d 641, 651 (Ky. 2009) (quoting Terry v. Commonwealth, 253 S.W.3d 466, 470 (Ky. 2007)).

2012Nevertheless, review of the un-preserved claim of a violation of statutory double jeopardy is proper upon application of the palpable error rule, see RCr 10.26. 4 Cardine v. Commonwealth, 283 S.W.3d 641 (Ky.2009) (“Double jeopardy violation resulting when defendant was retried following trial court’s sua sponte declaration of mistrial on less than manifest necessity constituted palpable error”).

2026“That means that if, upon consideration of the whole case, a substantial possibility does not exist that the result would have been different, the error will be deemed nonprejudicial.” Graves v. Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000) (citing Jackson v. Commonwealth, 717 S.W.2d 511 (1986)). “[T]he required 11 showing is probability of a different result or error so fundamental as to threaten a defendant’s entitlement to due process of law.” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006). 8 In Johnson I, we held that “this type of error, which violates a defendant’s right to a unanimous

2025Kentucky Rules of Criminal Procedure (RCr) 10.26. “[I]f upon consideration of the whole case the reviewing court does not conclude that a substantial possibility exists that the result would have been any different, the error complained of will be held to be nonprejudicial.” Jackson v. Commonwealth, 717 S.W.2d 511, 513 (Ky. App. 1986) (citation omitted).