Date: Jun 29, 2026

KRE 701(c): Lay Witnesses May Describe Observed Behaviors but May Not Testify to an Autism Diagnosis Without Medical Evidence

Introduction

In Shon E. Denton-Higgs v. Commonwealth of Kentucky (Ky. June 25, 2026) (not to be published), the Supreme Court of Kentucky affirmed a Henderson Circuit Court judgment imposing a total sentence of thirty-five years’ imprisonment following a jury verdict convicting Shon E. Denton-Higgs of first-degree assault, first-degree attempted assault, first-degree wanton endangerment, and fourth-degree assault.

The appeal centered on evidentiary rulings affecting the defense theory of extreme emotional disturbance (EED), including: (1) whether lay witnesses could testify that Denton-Higgs was “autistic” absent medical proof of diagnosis; (2) whether limited evidence of prior animal cruelty was admissible as contextual “other acts” evidence; (3) whether recorded jail video calls were inadmissible as cumulative, irrelevant, or unfairly prejudicial; and (4) whether cumulative error warranted reversal.

Summary of the Opinion

Lay “autism diagnosis” testimony excluded: The Court held the trial court acted within its discretion under KRE 701(c) by barring lay witnesses (including Denton-Higgs) from testifying to an autism diagnosis without supporting medical evidence, while still permitting lay testimony describing observed behaviors.
Limited animal-cruelty evidence admitted: The Court upheld admission of brief testimony that family members were concerned about kittens because Denton-Higgs had “problems being cruel to pets,” finding it relevant to provide context for why witnesses went to the garage and not unduly prejudicial under KRE 403, applying KRE 404(b) principles.
Jail video calls admitted: Recordings containing admissions and statements undermining EED were not “cumulative” and were probative without unfair prejudice.
No cumulative error: Because no individual errors were found, cumulative error did not apply.

The judgment was affirmed.

Analysis

1) Precedents Cited

A. Preserving issues and appellate abandonment

The Court treated Denton-Higgs’ earlier hearsay-exception theory as abandoned because it was not pursued on appeal, citing Halvorsen v. Commonwealth, 671 S.W.3d 68 (Ky. 2023). This framing narrowed the autism issue to the lay/expert boundary (KRE 701/702) rather than hearsay doctrine.

B. Standard of review: abuse of discretion

The Court reiterated the familiar evidentiary standard from Commonwealth v. Melton, 670 S.W.3d 861 (Ky. 2023), and defined abuse of discretion using Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999). These cases provided the lens through which each ruling was evaluated: whether the trial court acted arbitrarily, unreasonably, unfairly, or without sound legal principle.

C. Lay opinion limits and medical diagnosis

The autism ruling is anchored in Kentucky’s long-standing principle that lay witnesses may describe observable condition and symptoms but may not diagnose disease:

Clifford v. Commonwealth, 7 S.W.3d 371 (Ky. 1999) (lay opinion permissible when rationally based on perception and helpful, and when a conclusion is necessary to communicate observations).
Equitable Life Assur. Soc. of U.S. v. Fannin, 53 S.W.2d 703 (Ky. 1932) (lay testimony may cover commonly understood symptoms, but laypersons cannot diagnose diseases).
Greer v. Richards' Adm'r, 115 S.W.2d 568 (Ky. 1938) and Hall v. Banks, 395 S.W.2d 776 (Ky. 1965) (laypersons are not competent to make medical diagnoses).

The Court treated KRE 701(c)’s “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702” as continuous with these earlier medical-diagnosis cases (citing Lawson’s Evidence Handbook).

The Court also cited out-of-state authority consistent with that view: Smith v. State, 901 S.E.2d 158 (Ga. 2024), and State v. Gonzalez, 268 A.3d 329 (N.J. 2022), to support the proposition that a doctor’s diagnosis is typically expert opinion and not a simple factual assertion a lay witness may repeat.

D. Distinguishing behavior testimony from diagnosis testimony

Denton-Higgs relied on Richmond v. Commonwealth, 534 S.W.3d 228 (Ky. 2017), but the Court distinguished it: the foster mother in Richmond testified about observed behaviors of an autistic child, while the validity/foundation of the diagnosis itself was not litigated. Thus, Richmond supported the admissibility of behavior observations, not lay proof of a diagnosis.

E. Unpublished foreign dicta and citation disfavor

The Court declined to follow an unpublished Pennsylvania Superior Court decision, Commonwealth v. Schiefelbein, 290 A.3d 662 (Table), 2022 WL 17484327 (Pa. Super. Ct. Dec. 7, 2022), characterizing its discussion of the autism-diagnosis point as non-binding dicta and factually distinguishable. In describing waiver, the opinion referenced Epstein v. Saul Ewing, LLP, 7 A.3d 303 (Pa. Super. 2010). It also noted Kentucky’s disfavor of citing unpublished foreign opinions under RAP 41(B).

In a footnote, the Court observed that Schiefelbein relied on Commonwealth v. Provenzano, 50 A.3d 148 (Pa. Super. Ct. 2012), and Commonwealth v. Crosby, 791 A.2d 366 (Pa. Super. Ct. 2002), but emphasized those cases did not apply evidence rules in the manner Kentucky required.

F. Right to present a defense vs. evidence rules

The Court rejected the constitutional argument using Kentucky precedent that the right to present a defense does not override evidentiary rules: Newcomb v. Commonwealth, 410 S.W.3d 63 (Ky. 2013) (quoting McPherson v. Commonwealth, 360 S.W.3d 207 (Ky. 2012)). It invoked Beaty v. Commonwealth, 125 S.W.3d 196 (Ky. 2003), for the threshold (“significantly undermine fundamental elements”), and the balancing approach discussed in McPherson v. Commonwealth (citing Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky. 2010)).

The Court also distinguished State v. Burr, 921 A.2d 1135 (N.J. Super. Ct. App. Div. 2007), because Burr involved exclusion of expert Asperger’s testimony, while Denton-Higgs sought admission of lay diagnosis testimony.

G. “Other acts” evidence under KRE 404(b): context and EED

For the animal-cruelty evidence, the Court applied the KRE 404(b) framework through key Kentucky authorities:

Rodriguez v. Commonwealth, 107 S.W.3d 215 (Ky. 2003) (KRE 404(b) purposes are illustrative) (quoting Colwell v. Commonwealth, 37 S.W.3d 721 (Ky. 2000)).
Bell v. Commonwealth, 875 S.W.2d 882 (Ky. 1994) (three-part admissibility inquiry and caution against propensity use).
Major v. Commonwealth, 177 S.W.3d 700 (Ky. 2005), as quoted in Commonwealth v. Melton (Commonwealth may present a “complete, un-fragmented” picture, including context).
Sherroan v. Commonwealth, 142 S.W.3d 7 (Ky. 2004) (prior violent activities may be relevant to rebut EED, subject to KRE 403).
Parker v. Commonwealth, 952 S.W.2d 209 (Ky. 1997) (probative if jury could reasonably infer acts occurred and defendant committed them).
Ross v. Commonwealth, 531 S.W.3d 471 (Ky. 2017) (credibility generally for the jury unless incredible as a matter of law) (quoting Daulton v. Commonwealth, 220 S.W.2d 109 (Ky. 1949)).

H. “Cumulative” evidence and unfair prejudice

For the jail calls, the Court used a classic Kentucky definition of cumulative evidence from Torian v. Terrell, 93 S.W. 10 (Ky. 1906), and clarified that overlap is not necessarily cumulativeness via Doneghy v. Commonwealth, 410 S.W.3d 95 (Ky. 2013).

On unfair prejudice, the Court quoted Ford Motor Co. v. Fulkerson, 812 S.W.2d 119 (Ky. 1991) (quoting Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613 (5th Cir. 1977)) for the principle that most relevant evidence is prejudicial; the question is whether it is unfairly prejudicial.

I. Cumulative error

The Court applied Brown v. Commonwealth, 313 S.W.3d 577 (Ky. 2010), which itself references Funk v. Commonwealth, 842 S.W.2d 476 (Ky. 1992), and Furnish v. Commonwealth, 95 S.W.3d 34 (Ky. 2002), to reject cumulative error where no individual error exists.

2) Legal Reasoning

A. The opinion’s core evidentiary boundary: “diagnosis” is specialized knowledge

The Court’s central move is a clean separation between (i) testimony describing behavioral observations (anger issues, nervousness in social interactions, obsessive/unfiltered behavior) and (ii) testimony attributing those behaviors to a medical diagnosis (“autism”). Under KRE 701(c), the latter is “scientific, technical, or other specialized knowledge” within the domain of KRE 702 and cannot be introduced through lay opinion.

Critically, the Court framed the trial court’s ruling as permissive of observation evidence and only prohibitive of the diagnostic label absent medical support, reducing the defense’s claim that it was prevented from telling its story.

B. Procedural fairness and the defendant’s opportunity to present expert proof

The Court emphasized that Denton-Higgs had notice obligations and multiple opportunities to disclose expert mental-health evidence, and the trial court ordered a mental health evaluation and set disclosure deadlines. The failure to timely disclose expert evidence mattered not as a sanction analysis per se, but as context supporting the conclusion that the defendant could not convert a specialized medical claim into admissible lay testimony at the last minute.

C. Contextual “other acts” evidence was narrowly cabined

Applying Bell v. Commonwealth and KRE 403, the Court relied on the narrowness of the proof: the Commonwealth avoided details (killing/drowning allegations were not explored at trial), and only brief references explained why family members went to the garage and why the kittens mattered. The Court treated that “why did they go there?” narrative as a legitimate non-propensity purpose—context and background—especially because Denton-Higgs disputed the witnesses’ motives and invoked EED.

D. The jail calls were probative on EED and not merely duplicative

Although Denton-Higgs had already confessed, the Court found the calls had distinct probative force: they tended to confirm a motive inconsistent with EED (anger at being reported to police for “stupid” matters), conveyed attitude and lack of remorse, and showed he believed he had told police “the whole” story—undercutting later reframing. Thus, they were not “additional evidence of the same kind to the same point” in the sense condemned as cumulative.

E. Constitutional claim failed because the evidentiary rule served legitimate ends

The Court applied the McPherson/Montgomery balancing concept: KRE 701(c) is designed to prevent juror confusion and the “smuggling” of expert testimony without reliability safeguards. Because the defendant could still present behavioral evidence and had the opportunity to present expert proof, enforcing the rule was neither arbitrary nor disproportionate.

3) Impact

Although designated “NOT TO BE PUBLISHED” under RAP 40(D) and therefore not binding precedent, the opinion is a detailed application of Kentucky evidence doctrine that may be cited for consideration under RAP 41 when no published opinion adequately addresses the point.

Practically, the decision signals several litigation consequences:

Mental-health labels require proper foundations: Kentucky trial courts are likely to treat diagnostic labels (e.g., autism, PTSD, bipolar disorder) as expert-domain assertions requiring medical proof; parties should anticipate KRE 701(c) objections where the defense or prosecution seeks to introduce “diagnosis-by-lay-witness.”
Behavior evidence remains available: Even when diagnosis testimony is excluded, counsel can still develop the record through concrete observations (communication difficulties, rigidity, sensory sensitivity, social anxiety, etc.), which may support EED or mitigation arguments, provided they are not presented as a medical conclusion.
Contextual 404(b) use is favored when narrowly presented: The animal-cruelty discussion reinforces that limited, non-detailed “other acts” evidence may survive KRE 403 when used to explain witness conduct and narrative sequence, especially where the defendant contests that context and advances EED.
Post-offense statements can be uniquely probative despite confessions: Jail-call admissions and attitudes can be admitted to rebut state-of-mind defenses and are unlikely to be deemed cumulative merely because guilt is otherwise strongly proved.

Complex Concepts Simplified

Extreme Emotional Disturbance (EED): A partial defense theory in Kentucky homicide/assault contexts that, if credited, can reduce culpability by showing the defendant acted under an extreme, reasonable emotional disturbance at the time—often contested through motive evidence and the defendant’s statements and conduct.
KRE 701 (Lay Opinion): Lets non-experts give opinions only when based on personal perception, helpful to the jury, and—crucially—not based on specialized knowledge reserved for experts. A lay witness can describe what they saw; they generally cannot give medical diagnoses.
KRE 702 (Expert Testimony): Governs testimony based on specialized knowledge (medicine, psychology, science). It carries reliability and qualification requirements that do not apply to ordinary lay witnesses.
KRE 404(b) (Other Crimes/Wrongs/Acts): Generally prohibits “propensity” evidence (he did bad things before, so he did this), but allows other-acts evidence for legitimate purposes like motive, intent, context, or when “inextricably intertwined,” subject to KRE 403.
KRE 403 (Unfair Prejudice): Even relevant evidence can be excluded if its risk of unfairly inflaming the jury substantially outweighs its probative value. “Unfair prejudice” is more than “it hurts the defendant’s case”; it means it risks decision by emotion or confusion rather than facts.
Cumulative Evidence: Not merely repetitive; it is additional evidence of the same kind to the same point where the matter is already fully proved, such that more proof adds little but consumes time or risks undue emphasis.
Cumulative Error: A doctrine allowing reversal when multiple harmless errors together make the trial fundamentally unfair; it does not apply where no errors are found.
Abuse of Discretion: A deferential appellate standard: reversal occurs only if the ruling is arbitrary, unreasonable, unfair, or unsupported by sound legal principles.

Conclusion

The Supreme Court of Kentucky affirmed Denton-Higgs’ convictions by applying orthodox evidence principles in a state-of-mind-driven assault case. The most consequential doctrinal clarification is the Court’s insistence—under KRE 701(c) and Kentucky’s medical-diagnosis line of cases—that lay witnesses may describe behavior but may not supply a medical diagnosis label such as “autism” without adequate medical evidence. The Court further endorsed narrowly tailored contextual other-acts evidence and treated post-offense jail communications as probative and non-cumulative, leaving no foundation for cumulative-error relief.