“Beyond the Interview Room” – Kentucky Supreme Court Tightens the Reins on Forensic-Interviewer Testimony and Clarifies Waiver of Instructional Error
Commentary on Jamie Boggs v. Commonwealth of Kentucky, 2025-SC-0467-MR (rendered 20 June 2025)

1. Introduction

Jamie Boggs was convicted in Harlan Circuit Court of multiple sexual offences committed against two minor step-daughters, Betty and Susan, over a five-year period. On automatic appeal to the Supreme Court of Kentucky, Boggs advanced four clusters of error: (i) jury-instruction infirmities (juror unanimity and double-jeopardy overlap); (ii) admission of bad-acts evidence of domestic violence; (iii) alleged hearsay; and (iv) “bolstering” of victim credibility through the testimony of a Child Advocacy Center (CAC) forensic interviewer, Kayla Byrd.

The Court unanimously affirmed the judgment, but splintered 4-3 on whether the CAC testimony, though erroneous, was harmless. Justice Conley’s majority opinion deems the bolstering improper but ultimately harmless; Justice Nickell, joined by Goodwine, dissents on harmlessness; Justice Keller, joined by Bisig, concurs in result, opining that no error occurred at all. The decision delivers two powerful signal-flares to bench and bar:

• Parties who expressly agree to proposed jury instructions invite any embedded error and waive subsequent appellate review—including constitutional claims of unanimity and double jeopardy.
• CAC or comparable forensic-interviewer witnesses risk exclusion unless their testimony adds relevant, non-cumulative facts; “pre-emptive” or “confirmatory” testimony that children were not “coached” is squarely labelled impermissible vouching.

2. Summary of the Judgment

The Court affirmatively finds:

1. Waiver of Instructional Error – Boggs expressly told the trial judge he had “no objection” to the final instructions, thereby inviting any unanimous-verdict or double-jeopardy defects. Waiver rather than mere forfeiture forecloses even palpable-error review.
2. No Palpable Error in Prior-Bad-Acts Evidence – Testimony about Boggs’s physical abuse of the victims and their mother was admissible to explain the nine-year delay in reporting under KRE 404(b).
3. Improper Bolstering by CAC Interviewer – Byrd’s opinion that she saw “no indicators” of coaching amounted to prohibited vouching. Nevertheless, a four-Justice majority finds the error harmless in light of the victims’ detailed testimony and partial corroboration by their mother.
4. No Palpable Error in Hearsay Statements – Two challenged utterances were either waived, qualified as excited utterances, or admissible to show the declarants’ state of mind.
5. Convictions and 40-year sentence are affirmed.

3. Analysis

3.1 Precedents Cited and Their Influence

• Sanchez v. Commonwealth, 680 S.W.3d 911 (Ky. 2023) – Crucial on invited-error waiver. The majority relies on Sanchez to hold that an express agreement to jury instructions extinguishes later challenges—even of constitutional dimension.
• King v. Commonwealth, 472 S.W.3d 523 (Ky. 2015); Bell v. Commonwealth, 245 S.W.3d 738 (Ky. 2008); Hall v. Commonwealth, 862 S.W.2d 321 (Ky. 1993) – A trio establishing Kentucky’s strict prohibition against expert or quasi-expert vouching for victim credibility. Used to brand Byrd’s “no coaching indicators” testimony as improper.
• Martin v. Commonwealth, 409 S.W.3d 340 (Ky. 2013) – Quoted for rationale on RCr 9.54 and the distinction between omission and choice regarding jury instructions.
• Colvard v. Commonwealth, 309 S.W.3d 239 (Ky. 2010) – Provides the harmless-error yardstick: whether the judgment was “substantially swayed” by the error.
• Leach v. Commonwealth, 571 S.W.3d 550 (Ky. 2019) – Endorses admitting other-bad-acts evidence to explain delayed reporting of sexual abuse.
• Souder; Hartsfield – Frame the excited-utterance exception for certain hearsay statements.

3.2 Court’s Legal Reasoning

1. Waiver/Invited Error – By affirmatively accepting the instruction packet, Boggs “knowingly relinquished” objections under juror-unanimity and double-jeopardy doctrines. Invited errors are “not subject to appellate review.”
2. KRE 404(b) Evidence – Violence and threats were admissible for a non-character purpose: to counter the defence theory that delayed disclosure indicated fabrication. The Court treats this as almost automatically relevant under Leach.
3. Bolstering – Byrd’s credentials, explanation of “non-leading” technique, and conclusion of “no coaching indicators” implicitly vouched for truthfulness. The majority emphasises that bolstering may occur before a victim testifies. Nevertheless, because Byrd supplied no substantive details of the abuse and her improper statement was brief, the Court—while lambasting the practice—finds an absence of “substantial influence.”
4. Harmless-Error Analysis Nuanced by Context – The majority weighs: (a) quantity and specificity of the victims’ direct testimony; (b) partial corroboration; (c) brevity of bolstering. Dissenters counter that where credibility is the case, any professional imprimatur can “tip the scales.”
5. Hearsay – One statement was waived by defence questioning; another fit the excited-utterance exception; remaining statements were admissible as evidence of the declarants’ fear (state of mind) relevant to delayed reporting.

3.3 Anticipated Impact

• Tighter Gatekeeping of CAC Testimony – Trial judges are now expressly admonished to exclude forensic-interviewer evidence that adds no material facts and serves only to enhance credibility. Expect more motions in limine and more KRE 401/403 objections.
• Reinforced Demarcation between Waiver and Forfeiture – Litigants (and trial counsel) are on explicit notice that saying “no objection” to an instruction packet waives even constitutional defects. Preservation strategies will likely change; counsel may lodge conditional objections or proposed alternates to keep issues alive.
• Harmless-Error Template – The majority’s nuanced harmless-error framework (weighing quantity of live testimony, corroboration, and the narrowness of improper statement) provides prosecutors and defence lawyers a roadmap for future arguments.
• Dissent Provides Ammo for Future Challenges – Justice Nickell’s powerful dissent warns that in pure credibility contests, any professional endorsement of victim believability risks reversible error. Expect litigants to cite this dissent until either the legislature or Court gives clearer guidance.

4. Complex Concepts Simplified

• Bolstering / Vouching – Any attempt by one witness to tell the jury that another witness is truthful. Direct (“I believe her”) or indirect (“I saw no signs she was lying”) forms are both prohibited.
• KRE 404(b) – Kentucky Rule excluding “other bad acts” to prove character, but allowing them for limited purposes such as motive, plan, or—here—explanation of delayed disclosure.
• Palpable Error (RCr 10.26) – A high-bar standard applied to unpreserved errors; the defect must be “manifest, fundamental, and unambiguous.”
• Invited Error vs. Forfeiture – Forfeiture is mere failure to object (reviewable for palpable error); invited error is the defendant’s active participation or agreement (no review).
• Harmless Error – Even if a legal mistake occurred, the conviction stands if the appellate court believes the verdict was not “substantially swayed” by it.
• Excited Utterance – A spontaneous statement made under the stress of an event; exempt from hearsay rules because the declarant’s excitement reduces risk of fabrication.
• Child Advocacy Center (CAC) Forensic Interview – A structured, recorded interview of a minor by a trained professional aimed at gathering fact information for multi-agency investigations.

5. Conclusion

Jamie Boggs v. Commonwealth is less notable for its ultimate affirmance than for the Court’s stern guidance on two recurrent trial issues. First, defence counsel who “sign off” on jury instructions do so at their client’s peril; waiver trumps all. Second, the decision issues a cautionary “yellow card” to the routine use of CAC interviewers as quasi-experts on credibility. The Court re-states the bright-line ban on vouching, yet applies a context-heavy harmless-error test, producing a split bench and a fertile ground for future appeals. Practitioners should anticipate more pre-trial litigation over the admissibility of forensic-interviewer evidence and adopt clearer objection strategies to preserve instructional issues. Ultimately, Boggs reinforces an old but oft-ignored lesson: facts, not professional assurances, must persuade the jury.