Reaffirming the Jett Rule and Policing Lay Narration: Handling Recanting Child Witnesses and Prosecutor-as‑Witness Missteps Under Harmless/Palpable Error

Note on publication status: This is an unpublished memorandum opinion of the Supreme Court of Kentucky, rendered October 23, 2025, designated “Not to be Published” under RAP 40(D). While not binding precedent, it may be cited for consideration where no published opinion adequately addresses the issue.

Introduction

In Jerry Boggess v. Commonwealth of Kentucky, the Supreme Court of Kentucky affirmed a thirty-year sentence after a jury convicted the defendant on multiple counts of first-degree sexual abuse and first-degree sodomy arising from allegations by his step-grandchild, N.G. The case turned on three core evidentiary and trial-management problems that recur in child sexual abuse prosecutions:

• Whether the Commonwealth could treat a recanting child complainant as a hostile witness and impeach her with prior inconsistent statements, using those statements substantively;
• How far advocates and witnesses may go in narrating or interpreting ambiguous video and audio recordings the jury itself can view or hear; and
• Whether a prosecutor may question a witness about a personal conversation the prosecutor had with the witness, effectively becoming an unsworn witness.

Although the Court identified multiple errors—including improper lay narration of recordings and a prosecutor’s personal-knowledge questioning—it held the preserved errors were harmless and the unpreserved errors were not palpable under RCr 10.26. The decision provides an instructive synthesis of Kentucky evidence law governing hostile witnesses, prior inconsistent statements (the Jett rule as codified in KRE 801A), lay opinion limits on interpreting recordings (KRE 701/602), and prosecutorial ethics constraints, all through the lens of harmless and palpable error review.

Summary of the Opinion

The Supreme Court affirmed the convictions and sentence. Its key holdings include:

• Hostile witness designation: The trial court did not abuse its discretion by deeming the child complainant hostile after she recanted on the stand; leading questions were permissible under KRE 611(c). Prior inconsistent statements from the Child Advocacy Center (CAC) interview were properly admitted both to impeach and as substantive evidence under KRE 801A(1) (the Jett rule).
• Leading questions and mischaracterizations: Some of the Commonwealth’s leading questions “unartfully” characterized the child’s prior statements, and in two instances mischaracterized them. Because specific objections were not made, the Court reviewed for palpable error and found no manifest injustice.
• Opening statement and narration of recordings: Playing the bedroom video during opening and offering argumentative commentary about what it showed was error, but harmless given later admission and full trial development. Allowing a detective who lacked personal knowledge to opine about what ambiguous video and jail-call audio showed was error under KRE 701/602, but harmless/non-palpable because the jury saw/heard the source materials and could draw its own inferences, and because the detective’s testimony was adequately contextualized and tested.
• Prosecutor as witness: The prosecutor improperly questioned the child about their private meeting, thereby asserting personal knowledge and effectively testifying in violation of professional responsibility rules and the evidence code. The misconduct was error but not palpable; it did not create manifest injustice in light of the entire record.
• Cumulative error: Though the errors were “close” in the aggregate, they did not render the trial fundamentally unfair under Kentucky’s cumulative error doctrine.

Factual Background

The complainant (N.G.), just past her twelfth birthday, lived with her grandmother and step-grandfather, Boggess. After an incident coinciding with a belated birthday party, the child reported a course of sexual abuse beginning when she was seven, and produced a short “bedroom video” showing Boggess shirtless on a bed touching her while she filmed. The footage is ambiguous: stills show his hand moving up her inner thigh, but do not definitively depict contact with the vaginal area. In a subsequent CAC interview, the child described multiple acts: digital penetration “every morning before school,” compelled oral sex (including for return of her phone and in the garage), breast/vaginal sucking, and the video incident.

After indictment on five counts of first-degree sexual abuse of a child under 12 and three counts of incest (later amended to first-degree sodomy because the step-grandparent relationship post-dated key acts), the child delivered a handwritten letter recanting, then told the prosecutor and a victim advocate in a private meeting that the recantation was untrue. At trial, the child recanted again, attributing her earlier statements to anger over chores and movie-based fabrication. The Commonwealth impeached her with recorded CAC statements and made the bedroom video the centerpiece of its case. The jury convicted on three sexual abuse counts and three sodomy counts, and recommended a 30-year aggregate sentence with mandatory conditional discharge.

Detailed Analysis

Precedents and Authorities Cited

• Standards of review and harmless/palpable error:
  • Boyd v. Commonwealth, 439 S.W.3d 126 (Ky. 2014) (abuse of discretion for evidentiary rulings; lay narration limits);
  • Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999) (abuse of discretion defined);
  • Winstead v. Commonwealth, 283 S.W.3d 678 (Ky. 2009) (harmless error “fair assurance” test);
  • RCr 10.26 (palpable error requires manifest injustice).
• Hostile witnesses and leading questions:
  • KRE 611(c) (leading hostile/adverse witnesses);
  • Tamme v. Commonwealth, 973 S.W.2d 13 (Ky. 1998) (leading questions are discretionary; reversal only with abuse plus miscarriage of justice);
  • Brown v. Commonwealth, 440 S.W.2d 520 (Ky. 1969) (hostile witness examined as if on cross).
• Prior inconsistent statements and the Jett rule:
  • KRE 613(a) (foundation for prior statements);
  • Noel v. Commonwealth, 76 S.W.3d 923 (Ky. 2002), overruled on other grounds by Mason v. Commonwealth, 559 S.W.3d 337 (Ky. 2018) (rationale for KRE 613 sequence);
  • KRE 801A(a)(1) (prior inconsistent statements admissible substantively if conditions met);
  • Jett v. Commonwealth, 436 S.W.2d 788 (Ky. 1969), and Askew v. Commonwealth, 768 S.W.2d 51 (Ky. 1989) (Jett rule);
  • Shepherd v. Commonwealth, 251 S.W.3d 309 (Ky. 2008); Thurman v. Commonwealth, 975 S.W.2d 888 (Ky. 1998);
  • United States v. Morlang, 531 F.2d 183 (4th Cir. 1975) (impeachment as subterfuge—discussed and distinguished).
• Lay narration of recordings and personal knowledge:
  • KRE 701 (lay opinions rationally based on perception and helpfulness) and KRE 602 (personal knowledge requirement);
  • Morgan v. Commonwealth, 421 S.W.3d 388 (Ky. 2014) (limits on lay opinion interpreting recordings);
  • Cuzick v. Commonwealth, 276 S.W.3d 260 (Ky. 2009) and Gordon v. Commonwealth, 916 S.W.2d 176 (Ky. 1995) (jury decides what recordings show, without witness embellishment);
  • Davidson v. Commonwealth, 548 S.W.3d 255 (Ky. 2018); McRae v. Commonwealth, 635 S.W.3d 60 (Ky. 2021) (scope of permissible explanatory testimony by investigating officer; distinction between context and interpretation).
• Opening statements:
  • Parker v. Commonwealth, 241 S.W.3d 805 (Ky. 2007) (opening is to outline expected proof; evidentiary materials must be authenticated and commentary tied to admissible proof);
  • Fields v. Commonwealth, 12 S.W.3d 275 (Ky. 2000) (use of real evidence in opening);
  • Jefferson v. Eggemeyer, 516 S.W.3d 325 (Ky. 2017) (opening isn’t evidence; avoid inadmissible matters).
• Prosecutor acting as a witness and professional responsibility:
  • SCR 3.130(3.4)(e) (no assertion of personal knowledge in trial); SCR 3.130(3.7) (advocate-witness rule);
  • KRE 603, KRE 802 (unsworn hearsay-like assertions by counsel are improper);
  • Holt v. Commonwealth, 219 S.W.3d 731 (Ky. 2007) (counsel cannot testify via questions); Fisher v. Commonwealth, 620 S.W.3d 1 (Ky. 2021) (violations and potential misconduct);
  • Dillon v. Commonwealth, 475 S.W.3d 1 (Ky. 2015) (prosecutor’s personal-knowledge impeachment is error, but not necessarily palpable).
• Cumulative error and overall fairness:
  • Brown v. Commonwealth, 313 S.W.3d 577 (Ky. 2010) (cumulative error requires substantial individual errors rendering the trial fundamentally unfair);
  • McDonald v. Commonwealth, 554 S.W.2d 84 (Ky. 1977) (fair trial, not perfect trial, is the constitutional measure).
• Substantive offense definitions (to assess materiality/prejudice):
  • KRS 510.040 (first-degree rape; any penetration, however slight, qualifies as sexual intercourse when victim under 12);
  • KRS 510.110 (first-degree sexual abuse; “sexual contact” does not require penetration);
  • KRS 510.010(7) and (8) (definitions of “sexual contact” and “sexual intercourse”);
  • KRS 510.070 and KRS 510.010(1) (first-degree sodomy; “deviate sexual intercourse”).

Legal Reasoning and Application

A. Recantation, Hostility, and Prior Inconsistent Statements

The defense previewed that the child would recant on the stand, and she did. After preliminary questions showed she now called her prior allegations “a lie,” the trial court treated her as hostile under KRE 611(c). That was not an abuse of discretion: hostility is assessed from the witness’s attitude toward the calling party; a witness who repudiates the prosecution’s theory and disavows prior inculpatory statements is “hostile.” Leading questions were proper to “develop the witness’s testimony” and facilitate impeachment.

The Commonwealth then followed KRE 613’s sequence: confronting the witness with the time, place, and content of prior statements (the CAC interview), letting her see/hear them, and offering an opportunity to explain. Once the child acknowledged making those prior statements and claimed they were lies, the prior inconsistent statements were admissible not only for impeachment but as substantive evidence under KRE 801A(a)(1)—a codification of the Jett rule. Kentucky continues to allow such statements for their truth if the declarant testifies and is examined about them with the KRE 613 foundation.

Two nuances deserve emphasis:

• The Court refused to assume an improper Morlang motive—that the Commonwealth called the witness primarily to present otherwise inadmissible hearsay. The record supported a good-faith expectation the witness might testify truthfully.
• Some “unartful” leading questions overstated what the witness had said in the CAC interview. Because there were no specific, timely objections, the Court reviewed only for palpable error and found no manifest injustice. Importantly, the Court explained that even if a leading question inserts a detail (e.g., “bottom knuckle” or “screamed” versus “grunted”), the materiality of the detail matters to prejudice analysis—penetration depth is immaterial to sexual abuse; the exact sound a person made is immaterial to sodomy.

B. Narration/Interpretation of Recordings: Video and Audio

Kentucky draws a firm line: lay witnesses cannot interpret recordings for the jury unless they perceived the events in real time; otherwise, narration usurps the jury’s role and violates KRE 701/602. Applying Morgan, Cuzick, Gordon, Boyd, Davidson, and McRae, the Court identified three contexts:

1. Opening statement video playback and commentary. Playing the bedroom video in opening was error, and arguing specific inferential conclusions (e.g., “hand to vagina”) was improper for opening. But the error was harmless because the video was later admitted, both participants testified, and the jury was properly instructed that openings are not evidence.
2. Detective’s interpretation of the bedroom video and jail calls. The detective lacked personal knowledge of what happened in the bedroom and of the contemporaneous content of the recorded phone calls (he reviewed recordings later). Allowing him to opine that the video showed “grabbing the vaginal area” and to interpret the calls was error. Still, the jury saw the video and heard the calls themselves—admitted as evidence—and the defense cross-examined. The Court had “fair assurance” the verdict was not substantially swayed.
3. Child’s testimony while the video played. Because she was a participant in the recorded event, she could be questioned about what was happening on and off frame. The Commonwealth could test her recantation by juxtaposing her CAC statements with the footage and stills. No palpable error occurred.

Practice note: The Court flagged, without deciding, that playing the bedroom video nine times (including four times during the child’s testimony) was “inordinate.” Had the issue been preserved (e.g., as cumulative or inflammatory), the analysis might have been different.

C. Prosecutor as Unsworn Witness

The prosecutor questioned the child about a private meeting in his office with a victim advocate on the day she delivered her recantation letter, eliciting her admission that she told them the letter was false. This was improper on multiple levels: counsel asserted personal knowledge of facts in issue (SCR 3.130(3.4)(e)), functioned as an advocate-witness (SCR 3.130(3.7)), and conveyed unsworn hearsay-like assertions contrary to KRE 603/802 and Holt. The Court echoed Dillon’s admonitions: this conduct is plainly error and potentially reversible if preserved. Here, reviewed for palpable error, it did not create manifest injustice because it occupied a small portion of the trial and was cumulative of other, properly admitted prior statements (the CAC recording).

D. Cumulative Error

Kentucky’s cumulative error doctrine demands substantial individual errors whose combined effect renders a trial fundamentally unfair. Even acknowledging a “close” question, the Court concluded the sum of harmless and non-palpable errors did not cross that threshold.

Impact and Practical Implications

1) Hostile Witnesses and the Jett Rule

Child sexual abuse prosecutions frequently confront recantation. This opinion reaffirms that:

• A recanting complainant can be treated as hostile based on testimony content and demeanor, allowing leading questions under KRE 611(c).
• Recorded forensic interviews (e.g., CAC) can be powerful substantive evidence under KRE 801A if KRE 613 foundations are laid and the declarant testifies.
• Defense counsel should make specific, contemporaneous objections when questions mischaracterize prior statements; otherwise, review will be for palpable error, which is a steep hill.

2) Guardrails on Interpreting Recordings

The decision is a pointed reminder that lay narration of ambiguous video or audio crosses KRE 701/602 lines unless the witness perceived the events in real time:

• Detectives may explain investigative steps (why they pursued charges) and authenticate exhibits, but not tell the jury “what the video shows” when they were not there.
• If audio quality is poor, the safer course is to improve the playback environment, provide accurate transcripts as demonstrative aids (with judicial approval), and avoid interpretive testimony from non-participants.
• Opening statements should not devolve into argument about the meaning of recordings; reserve interpretive advocacy for closing.

3) Prosecutors Must Avoid Advocate-Witness Violations

When a prosecutor has had substantive, disputed interactions with a witness, another attorney should conduct the examination—or the prosecutor should withdraw if necessary. Questioning that imports the prosecutor’s personal knowledge violates ethical rules and risks reversal, especially if preserved.

4) Materiality and Prejudice Matter

The Court’s prejudice analysis is notably granular. For example, a leading question that suggests “bottom knuckle” penetration is unlikely to cause prejudice on a sexual abuse count because penetration depth does not matter to “sexual contact,” and penetration “however slight” suffices for sexual intercourse. Similarly, whether the accused “screamed” or “grunted” during oral sex is immaterial to sodomy’s elements. Appellate counsel should tie alleged mischaracterizations to statutory elements to show substantial sway.

5) Issue Preservation Is Determinative

Several errors were acknowledged, but the decisive hurdle was preservation. Specificity and timing of objections—especially on narration, leading mischaracterizations, and repetition of recordings—can transform a harmless-error affirmance into a reversible abuse of discretion.

6) Charging Decisions and Amendments

The Court endorsed amending incest counts to first-degree sodomy where the step-grandparent relationship post-dated the alleged events, underscoring the need to align charges with the relationship status and temporal elements of incest statutes.

Complex Concepts Simplified

• Hostile witness: A witness called by a party who is antagonistic or aligned with the opposing side. The court may allow leading questions to develop testimony (KRE 611(c)).
• Prior inconsistent statement (Jett rule): A witness’s earlier statement that contradicts current testimony can be used not only to impeach but also as substantive evidence if the witness testifies and the examiner follows KRE 613 (KRE 801A(a)(1)).
• Lay versus expert opinion: Lay witnesses may give opinions only if based on their own perceptions and helpful to the jury (KRE 701), and they must have personal knowledge (KRE 602). Interpreting recordings one did not perceive in real time generally invades the jury’s role.
• Harmless error: Even if the trial court erred, a conviction stands if the reviewing court has “fair assurance” the judgment was not substantially swayed by the error.
• Palpable error: An unpreserved error so serious that it results in manifest injustice (RCr 10.26). This is an exacting standard.
• Cumulative error: Multiple errors that, when considered together, render a trial fundamentally unfair. Requires substantial individual errors.
• Sexual contact vs. sexual intercourse vs. deviate sexual intercourse:
  • Sexual contact: Touching intimate parts or coverings for sexual arousal/gratification or sexual purpose (KRS 510.010(7)); no penetration necessary (sexual abuse).
  • Sexual intercourse: Penetration of sex organs by any body part, however slight (KRS 510.010(8)); victim under 12 = first-degree rape (KRS 510.040).
  • Deviate sexual intercourse: Sexual gratification involving genitals and mouth (KRS 510.010(1)); victim under 12 = first-degree sodomy (KRS 510.070).
• Advocate-witness rule: Lawyers should not act as both advocate and witness in the same proceeding, absent narrow exceptions (SCR 3.130(3.7)).

Practice Pointers

• For prosecutors:
  • Avoid playing recordings during opening or offering argumentative narration; preview content neutrally and reserve arguments for closing.
  • If you have personal involvement in a witness meeting, assign another attorney to examine or consider withdrawal if your testimony may be necessary.
  • When using CAC interviews, hew closely to the witness’s exact words. If paraphrasing, make it accurate and fair; anchor questions to time, place, and persons per KRE 613.
• For defense:
  • Object specifically and contemporaneously to mischaracterizations in leading questions and to improper lay narration of recordings; request admonitions or limiting instructions.
  • Challenge repetitive playback of prejudicial video/audio as cumulative or unduly emphasized; seek reasonable limits.
  • On prosecutor-as-witness issues, move to strike, seek curative admonitions, request that a different prosecutor examine, or move for mistrial if necessary.
• For trial courts:
  • Enforce KRE 701/602: limit non-percipient witnesses from interpreting recordings; permit only context necessary to explain investigative steps.
  • Police opening statements: no argumentative narration of recordings; ensure foundation and admissibility if demonstratives are used.
  • Manage repetition of recordings to avoid undue emphasis; consider giving tailored jury instructions that they must decide for themselves what recordings depict.

Conclusion

Though unpublished, Boggess offers a comprehensive refresher on critical evidentiary and ethical boundaries in trials driven by recorded statements and recanting witnesses. The Court:

• Affirmed that a recanting complainant may be treated as hostile and impeached with prior inconsistent statements that come in substantively under KRE 801A (Jett rule);
• Reinforced that lay witnesses—including investigators—cannot interpret what recordings show absent personal, real-time perception, and that such narration risks reversible error, though harmlessness may apply where the jury has the source material;
• Condemned prosecutors’ personal-knowledge questioning that makes them unsworn witnesses, signaling that preservation could warrant reversal in a future case; and
• Clarified the analytic divide between harmless and palpable error, with cumulative error remaining a demanding standard.

Ultimately, the Court’s message is twofold: juries, not witnesses, interpret recordings; and lawyers, not witnesses, should avoid becoming part of the evidentiary narrative. While the errors here did not warrant reversal, the opinion sets out clear guardrails that, if crossed and preserved, could change the outcome in a future case. In the specialized arena of child sexual abuse litigation—where recorded forensic interviews and ambiguous videos are common—Boggess is a timely and practical guide for practitioners and trial courts alike.