Prohibiting Inferences from Defendant’s Counsel Consultations as Palpable Error

Introduction

The Supreme Court of Kentucky’s decision in Justin Wischer v. Commonwealth of Kentucky establishes a critical safeguard for the constitutional right to counsel. In this case, the defendant was convicted by a Campbell County jury of first-degree rape of a child under the age of twelve. On appeal, he argued that the Commonwealth improperly commented on his pretrial consultations with defense attorneys, implying guilt from those consultations. Although this issue was not preserved at trial, the Court found the comments so egregious that they rose to the level of palpable error, requiring reversal and a new trial. This commentary surveys the factual background, summarizes the Court’s holding, analyzes the precedents and reasoning applied, explains the broader impact on criminal practice, and clarifies complex legal concepts for practitioners and scholars.

Summary of the Judgment

A Campbell County jury convicted Justin Wischer of first-degree rape of his 11-year-old niece, K.C., on evidence that he had tickled and sexually assaulted her. During trial, the prosecutor repeatedly questioned Wischer about calls he made to family members and to two criminal defense lawyers shortly after the allegations came to light. In closing argument, the prosecutor characterized this pattern of phone calls—“Dad. Defense Attorney. Dad. Defense Attorney”—as “not the activity of an innocent person” but rather “someone starting to build a defense.” Wischer did not object at trial, but on appeal he asserted that these comments violated his right to counsel and deprived him of a fair trial. Applying Kentucky Rule of Criminal Procedure (RCr) 10.26, the Court held that the prosecutor’s direct implication that seeking legal advice was evidence of guilt constituted a palpable error, “so obvious and jurisprudentially intolerable” that it threatened Wischer’s due process rights. The conviction was reversed and remanded for a new trial.

Analysis

1. Precedents Cited

Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006) – Defines palpable error under RCr 10.26.
Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006) – Explains the manifest injustice standard for reversible error.
Miranda v. Arizona, 384 U.S. 436 (1966) – Rooted in Fifth Amendment privilege against self-incrimination and counsel rights during custodial interrogation.
Price v. Commonwealth, 31 S.W.3d 885 (Ky. 2000) – Harmless‐error analysis of comments on invocation of Miranda rights.
Sizemore v. Fletcher, 921 F.2d 667 (6th Cir. 1990) – Prohibition on drawing inferences of guilt from a defendant’s consultation with counsel.
State v. Angel T., 973 A.2d 1207 (Conn. 2009) – Surveys state and federal authority on counsel‐inference prohibition.
United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir. 1973) – Held plain error for prosecutor to equate consulting counsel with guilt.
Zemina v. Solem, 438 F. Supp. 455 (D.S.D. 1977) – Called prosecutor’s comment about calling counsel a “telling sign” of guilt reversible error.
United States v. McDonald, 620 F.2d 559 (5th Cir. 1980) – Emphasized that attacks on the right to counsel are antithetical to fair trial.

2. Legal Reasoning

Palpable Error Standard (RCr 10.26)
Under Kentucky Rule of Criminal Procedure 10.26, an appellate court may correct an unpreserved “palpable error” that “affects the substantial rights of a party” and results in “manifest injustice.” A palpable error is one that is “easily perceptible, plain, obvious, and readily noticeable.” The Court emphasized that this threshold “must be very high” and reserved for errors “shocking or jurisprudentially intolerable.”
Right to Counsel and Due Process
Although Sixth Amendment counsel rights typically attach at the initiation of formal charges and Fifth Amendment counsel rights at custodial interrogations, numerous federal and state courts have universally prohibited prosecutorial comment or inference that seeking counsel implies guilt. The Kentucky Court declined to anchor its ruling exclusively in the Fifth or Sixth Amendments, instead framing the prosecutor’s statements as a denial of due process under the Fourteenth Amendment.
Inapplicability of Harmless‐Error Escape
In Price v. Commonwealth, the Court engaged in a harmless‐error analysis because the defendant’s own confession overshadowed the comment on the invocation of Miranda rights. Here, by contrast, the case rested entirely on credibility—Wischer’s denial versus K.C.’s testimony—and there was no physical or forensic evidence. The jury even deadlocked before an Allen charge. Under these circumstances, the Court found the comments on Wischer’s consultations with defense counsel irredeemably prejudicial.
Comparative Federal Authority
The Court closely followed the reasoning of cases such as Yeager and Zemina, which held that inferences drawn from a defendant’s seeking of legal advice constitute plain or reversible error. Those decisions warn that allowing prosecutors to equate consulting counsel with guilt chills the exercise of a fundamental constitutional right.

3. Potential Impact

This decision reinforces a bright-line rule in Kentucky criminal trials: a prosecutor may not comment on or argue that a defendant’s decision to seek legal advice implies consciousness of guilt. Moving forward:

Trial Practice: Prosecutors must avoid any questioning or argument that highlights phone calls or meetings with defense counsel as evidence of guilt. Defense attorneys should lodge timely objections and request curative instructions whenever such lines of inquiry arise.
Appellate Review: Kentucky courts will enforce a stringent standard for “palpable error” in this context, reversing convictions whenever prosecutorial statements effectively penalize the exercise of the right to counsel.
Jurisprudential Consistency: The ruling aligns Kentucky with a broad consensus among federal and state jurisdictions, promoting uniform protection for the right to counsel and fair trial rights.

Complex Concepts Simplified

Palpable Error: An unpreserved mistake that is so obvious—“plain and readily noticeable”—that it affects a party’s substantial rights and merits correction even without a contemporaneous objection.
Allen Charge: A supplemental jury instruction given after deadlock, urging jurors to continue deliberations. Named for Allen v. United States (1896).
Right to Counsel: The constitutional guarantee (Sixth Amendment) that a defendant has a lawyer at critical stages of prosecution; and, under Miranda (Fifth Amendment), the right to counsel during custodial interrogation.
Harmless‐Error Analysis: A test to determine whether an error, though erroneous, was unimportant to the jury’s verdict. If overwhelming evidence supports guilt beyond a reasonable doubt, an error may be deemed harmless.
Due Process: A Fourteenth Amendment principle requiring fundamentally fair procedures. If prosecutorial misconduct denies a defendant a fair trial, due process is violated.

Conclusion

The Supreme Court of Kentucky in Justin Wischer v. Commonwealth has crystallized a new precedent: any attempt by the prosecution to use a defendant’s pretrial consultations with counsel as proof of guilt constitutes palpable error and requires reversal. By doing so, the Court affirms the bedrock principle that the right to counsel is sacrosanct, and courts will not tolerate insidious or overt attacks on that right. Trial lawyers and prosecutors in Kentucky must take heed—seeking counsel is not a sign of guilt but a protected exercise of constitutional liberties.