Clarifying the Limits of Prosecutorial Argument & Bolstering:
The Unpublished Guidance of Rivak C. Kalfus v. Commonwealth of Kentucky (Ky. 2025)

Introduction

In Rivak C. Kalfus v. Commonwealth of Kentucky, the Supreme Court of Kentucky (unpublished opinion, 20 June 2025) affirmed four concurrent life sentences imposed on Rivak C. Kalfus for first-degree rape and sodomy of a child. Although designated “Not to be Published,” the opinion is notable for its detailed treatment of:

• When a prosecutor’s comment does not constitute impermissible burden-shifting;
• The treatment of inadvertent references to a defendant’s prior incarceration under KRE 404(b) and the palpable-error rule;
• The boundary between improper bolstering and invited testimony, as well as the curative power of judicial admonitions; and
• The doctrinal contours of cumulative error analysis.

The case pits Appellant Kalfus—accused by the child victim, D.M., years after the alleged assaults—against the Commonwealth, which relied on D.M.’s testimony and the investigating detective to obtain convictions. Upon appeal, four principal issues were advanced, each rejected by the Court.

Summary of the Judgment

1. No Burden-Shifting. The prosecutor’s closing-argument remark that the defendant “never came up with any kind of motivation” for the child to lie did not transfer the burden of proof to the defense. The Court characterized the remark as permissible commentary on the weakness of the defense theory, citing the wide latitude accorded to closing argument.

2. Prior Incarceration Reference—No Palpable Error. An unanticipated statement by the detective that Kalfus “was in custody” when located was error under KRE 404(b) but not so prejudicial as to create manifest injustice. The Commonwealth’s lack of intent to introduce the evidence obviated the KRE 404(c) notice issue, and the brief, ambiguous nature of the remark rendered reversal unwarranted.

3. Bolstering—Cured or Waived. (a) A direct statement from the detective, “I believed what she said was true,” was improper vouching but cured by a prompt admonition. (b) Additional comments elicited during cross-examination (“she was very confident... no reason to lie”) were improper yet deemed invited; any error was therefore waived.

4. No Cumulative Error. Because none of the individual issues approached prejudicial magnitude, their aggregate effect did not render the trial fundamentally unfair.

Analytical Commentary

Precedents Cited & Their Influence

• Hannah v. Commonwealth, 306 S.W.3d 509 (Ky. 2010): Provides the two-step misconduct framework adopted here. The Court applied its “flagrant-misconduct” factors but found no misconduct.
• Butcher v. Commonwealth, 96 S.W.3d 3 (Ky. 2002): Emphasized that burden of proof rests on the Commonwealth; furnished the doctrinal backdrop for assessing alleged burden-shifting.
• Barrett v. Commonwealth, 677 S.W.3d 326 (Ky. 2023): An example of impermissible burden-shifting. Distinguishing Barrett underscored why the prosecutor’s remark here was acceptable.
• White v. Commonwealth, 544 S.W.3d 125 (Ky. 2017) & Ordway v. Commonwealth, 391 S.W.3d 762 (Ky. 2013): Reaffirm wide latitude in closing arguments and the right to highlight weaknesses in the opponent’s case.
• Mulazim v. Commonwealth, 600 S.W.3d 183 (Ky. 2020): Restated KRS 500.070’s allocation of burden of proof, guiding the Court’s burden-shifting analysis.
• Hoff v. Commonwealth, 394 S.W.3d 368 (Ky. 2011) & Stringer v. Commonwealth, 956 S.W.2d 883 (Ky. 1997): Anchored the rule against vouching/bolstering, shaping the Court’s treatment of the detective’s testimony.
• Johnson v. Commonwealth, 105 S.W.3d 430 (Ky. 2003): Established the presumption that a jury follows admonitions, saving the bolstering error.
• Estep v. Commonwealth, 663 S.W.2d 213 (Ky. 1983): Provided the “invited-error” principle applied to cross-examination bolstering.

Legal Reasoning

The Court’s analysis tracks the four appellate claims, grafting them onto established evidentiary and procedural doctrines:

1. Burdens & Closings. The prosecutor’s statement was deemed a fair rebuttal to the defense theory that the child fabricated accusations. The Court distinguished Barrett (where the prosecutor declared the presumption of innocence “gone”), emphasizing that commenting on a defendant’s failure to advance a plausible motive for fabrication does not erode the presumption of innocence.
2. KRE 404(b) & Palpable Error. Because the detective’s “in custody” remark was unsolicited, brief, and not exploited, it failed the manifest-injustice test of RCr 10.26. The Court stressed that KRE 404(c) notice is triggered only when the prosecution intends to introduce prior-bad-acts evidence—an important procedural nuance.
3. Bolstering & Admonitions. Direct vouching was cured by an admonition; indirect vouching was invited and therefore waived. The Court reiterated two exceptions to the “admonition cures error” rule (Alexander/Derossett) and found neither present.
4. Cumulative Error Doctrine. With each alleged error either cured, waived, or lacking prejudicial heft, the “sum-of-harmless-parts” formula could not create reversible prejudice.

Potential Impact

Although unpublished and non-precedential under RAP 40(D), the opinion is likely to exert persuasive influence in Kentucky trial courts because it:

• Clarifies permissible scope of prosecutorial commentary on “lack of motive to lie,” a frequently litigated issue in delayed child-sex-abuse cases.
• Reaffirms that inadvertent KRE 404(b) slips will rarely justify reversal absent exploitation or clear prejudice—guidance valuable for trial strategy and appellate preservation.
• Strengthens the “curative admonition + invited-error” framework, signaling that defense counsel must weigh carefully the risks of cross-examination eliciting officer opinions on credibility.
• Demonstrates a strict approach to cumulative-error claims: unless individual errors are “substantial, bordering on prejudicial,” their aggregation will not overturn a conviction.

Complex Concepts Simplified

1. Burden-Shifting vs. Fair Comment

The prosecution alone must prove guilt beyond a reasonable doubt. A prosecutor crosses the line when indicating that the defendant must disprove an element or when declaring the presumption of innocence “gone.” However, pointing out logical holes in a defense theory—including a failure to suggest a motive for fabrication—is permissible “fair comment.”

2. KRE 404(b) & KRE 404(c)

KRE 404(b) bars evidence of other crimes or bad acts solely to show the defendant’s propensity. Two exceptions permit such evidence for specific, non-propensity purposes or when intertwined with the charged offense. KRE 404(c) imposes pre-trial notice, but only when the Commonwealth intends to use the evidence.

3. Palpable Error (RCr 10.26)

If defense counsel fails to object, the appellate court applies the “palpable-error” standard: the mistake must be obvious, affect substantial rights, and cause manifest injustice—an exceptionally high bar.

4. Bolstering / Vouching

Witnesses, including experts and detectives, may not directly or indirectly assure the jury of another witness’s truthfulness. “Admonitions” are judge’s instructions to disregard improper statements and usually cure the error—unless the statement is so inflammatory that it is impossible to forget, or asked without factual basis.

5. Invited Error

A litigant cannot successfully claim error on appeal for testimony that he or she explicitly elicited; asking the question waives the objection.

6. Cumulative Error Doctrine

Numerous minor errors can collectively deny a fair trial, but only if each individual error is at least close to prejudicial. “Zero plus zero” does not equal reversible error.

Conclusion

Kalfus offers practitioners a compact tutorial on four recurring trial-error themes. It underscores that: (i) strategic comments on defense weaknesses will not be mistaken for burden-shifting absent explicit inversion of the presumption of innocence; (ii) fleeting, unsolicited references to prior bad acts seldom meet the palpable-error threshold; (iii) the combination of timely objections, curative admonitions, and the doctrine of invited error remains a robust shield for otherwise improper bolstering; and (iv) cumulative-error arguments demand truly substantial underlying mistakes. Even without precedential status, the decision will likely guide Kentucky trial counsel—highlighting best practices for preserving (or avoiding) error, and mapping the evidentiary minefield inherent in child-sex-offense prosecutions.