RENDERED: APRIL 29, 2019

TO BE PUBLISHED

Supreme Court of Kentucky

2019-SC-0585-MR

ROBERT CARSON JR. APPELLANT

APPEAL FROM KENTON CIRCUIT COURT

V. HONORABLE GREGORY BARTLETT, JUDGE

NO. 14-CR-00287

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE LAMBERT

REVERSING AND REMANDING

Robert Carson Jr. appeals from a judgment of the Kenton Circuit Court 

convicting him of four counts of first-degree sexual abuse; three counts of firstdegree sodomy; and three counts of incest. Carson contends that the trial 

court erred by 1) denying his motion to suppress his statements to police; 2) 

permitting the investigating detective to give an improper lay opinion as to 

Carson’s veracity; and 3) allowing the prosecutor to provide unsworn testimony 

through her questioning. After review, we conclude that the trial court properly 

denied Carson’s motion to suppress. However, the trial court erred by 

permitting the investigating detective to provide lay opinion testimony 

regarding his conclusion that Carson was lying during his interview derived
2

from behavioral analysis. This error warrants reversal, and we remand the 

case for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

In December 2013, Stephen,

1 then ten years old, disclosed to a family 

member that Carson subjected him to sexual contact on multiple occasions. 

Stephen later told a social worker at the hospital that Carson touched his butt 

and genitals and kissed him. Following this hospital visit, relatives of Stephen

reported these incidents to Covington Police. Police referred Stephen to the 

Children’s Advocacy Center (CAC). During his CAC interview, Stephen claimed

that Carson had touched his genitals and butt on several occasions. 

Detective Justin Bradbury observed the CAC interview and began 

investigating the allegations. On January 24, 2014, Det. Bradbury interviewed 

Carson. Throughout the four-hour interview, Det. Bradbury employed the 

“Reid Technique,” a multi-phase interrogation technique in which an 

investigating officer analyzes the suspect’s behavior, looking for signs of 

deception, and then engages in a confrontational interrogation if they believe 

they spot such indicators. Carson ultimately admitted to a series of sexual 

acts, including the touching of genitals, masturbation, and oral sex.

Carson was indicted of four counts of first-degree sexual abuse; three 

counts of first-degree sodomy; and three counts of incest. Prior to trial, Carson 

moved to suppress his statements made to Det. Bradbury during his 

interrogation. He argued that Det. Bradbury violated his Fifth Amendment 

 

1 We use a pseudonym to protect the identity of the victim.
3

right to remain silent. The trial court denied the motion, concluding that 

Carson failed to clearly invoke his right.

Following a lengthy pre-trial period, the case proceeded to trial in June of 

2019. The jury found Carson guilty on all counts. The jury recommended a 

sentence of twenty years on each count of sodomy; twenty years on each count 

of incest; and five years on each count of first-degree sexual abuse. The 

sentences were recommended to run concurrently for a total of twenty years’ 

imprisonment. The trial court sentenced him accordingly, and this appeal 

followed. Additional facts relevant to Carson’s claims of error are set forth 

below.

II. ANALYSIS

A. The admission of Det. Bradbury’s opinion testimony concerning 

Carson’s verbal and non-verbal cues of deception was reversible 

error.

Carson first asserts that the trial court erred in allowing Det. Bradbury 

to testify as to his ability to detect deception through verbal and non-verbal 

cues. Carson contends that Det. Bradbury’s testimony invaded the province of 

the jury when he testified that Carson exhibited behaviors consistent with 

deception during his interrogation. We review a trial court’s rulings on 

evidentiary issues for an abuse of discretion.2 The test for abuse of discretion 

 

2 Meece v. Commonwealth, 348 S.W.3d 627, 645–46 (Ky. 2011).
4

is whether the court’s decision was arbitrary, unreasonable, unfair, or 

unsupported by sound legal principles.3

Pursuant to KRE4 701, a lay witness may provide opinion testimony only 

if their opinion is (1) based on their perception; (2) helpful to a clear 

understanding of the witness’ testimony or the determination of a fact at issue; 

and (3) not based on scientific, technical, or specialized knowledge. More often 

than not this rule permits shorthand testimony regarding certain inferences 

the witness drew from behavior they observed.5 As a result, Kentucky law 

permits witnesses to give opinion testimony regarding a person’s apparent

intoxication;

6 the apparent age of a person;7 and a person’s apparent mental 

or emotional state.

8 The principle connecting each of these cases is that a 

witness may testify as to a conclusion they drew about a person’s behavior 

from their personal observation of certain facts.

Further, “[t]he degree to which a witness may give an opinion, of course, 

is predicated in part upon whether and the extent to which the witness has 

sufficient life experiences that would permit making a judgment as to the

 

3 Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) 

(citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).

4 Kentucky Rule of Evidence.

5 See Federal Rule of Evidence (FRE) 701 advisory committee’s note (“Witnesses 

often find difficulty in expressing themselves in language which is not that of an 

opinion or conclusion.”). 

6 Motorists Mut. Ins. Co. v. Glass, 946 S.W.2d 437 (Ky. 1997).

7 Howard v. Kentucky Alcoholic Control Bd., 172 S.W.2d 46 (Ky. 1943).

8 Commonwealth v. Sego, 872 S.W.2d 441, 444 (Ky. 1994).
5

matter involved.”9 Consequentially, law enforcement officers may provide lay 

opinion testimony as to their experience-based interpretations of certain facts 

which they personally observed.

10 Pursuant to this rule, this Court has 

permitted law enforcement officers to testify as to their interpretation of drugsniffing dogs behavior;

11 that a juice bottle appeared to be a homemade 

silencer;

12 and that a suspect appeared intoxicated due to his performance on 

a field sobriety test.13 But when the subject matter of the officer’s opinion is 

either not based on personal knowledge or based on specialized knowledge, the 

trial court must first qualify the officer as an expert.14

One area in which neither lay nor expert testimony is appropriate is the 

veracity of a witness.15 Just as we prohibit the introduction of mechanical

 

9 Hunt v. Commonwealth, 304 S.W.3d 15, 35 (Ky. 2009) (internal citations and 

quotations omitted).

10 See e.g., Iraolo-Lovaco v. Commonwealth, 586 S.W.3d 241, 247 (Ky. 2019); 

Burton v. Commonwealth, 300 S.W.3d 126, 140 (Ky. 2009) (“[P]olice officers and lay 

witnesses have long been permitted to testify as to their observations of a defendant’s 

acts, conduct and appearance, and also to give an opinion on the defendant’s state of 

impairment based upon those observations.”) (citation omitted).

11 Debruler v. Commonwealth, 231 S.W.3d 752, 757-58 (Ky. 2007).

12 Hunt v. Commonwealth, 304 S.W.3d 15, 30-31 (Ky. 2009).

13 Iarolo-Lovaco v. Commonwealth, 586 S.W.3d at 247.

14 See McGuire v. Commonwealth, 595 S.W.3d 90, 95 (Ky. 2019) (“Whether a 

certain quantity of methamphetamine is consistent with personal use, whether a 

certain type of bag is generally used to carry drugs, and whether the items found on a 

person are indicative of personal drug use are all subjects outside the scope of lay 

witness testimony.”).

15 Ordway v. Commonwealth, 391 S.W.3d 762, 789 (Ky. 2013).
6

polygraphic evidence, we similarly restrict the ability of a witness to act as a 

human lie detector on the stand.16 As such, “neither expert nor lay witness

may testify that another witness or a defendant is lying or faking. That 

determination is within the exclusive province of the jury.”17 

Here, the challenged testimony centered on Det. Bradbury’s use of the 

Reid Technique during his interrogation of Carson. When introducing the 

video recording of Carson’s interrogation, the Commonwealth elicited testimony 

concerning the Reid Technique:

18

Commonwealth (CW): You told us earlier that you underwent 

specialized training in conducting interviews or interrogations. 

Can you tell us more about the trainings that you have completed?

Det. Bradberry (DB): I attended a one-week course at the 

Department of Criminal and Justice Training in Richmond, 

Kentucky, and I attended a four-day course through the Jenny and 

John E. Reid Institute on interview and interrogation, as well as 

advanced interview and interrogation.

CW: What is the John E. Reid technique or institute?

DB: It is a nationally accepted technique. It is used by many, 

many police departments across the United States because of its 

high standard.

 

16 Cf. Ice v. Commonwealth, 667 S.W.2d 671, 675 (Ky. 1984) (prohibiting the 

introduction of polygraph evidence).

17 Moss v. Commonwealth, 949 S.W.2d 579, 583 (Ky. 1997) (quoting State v. 

James, A. 2d 471, 473 (R.I. 1989)).

18 We note that this is not this Court’s first encounter with the Reid Technique. 

See Esper v. Commonwealth, 2016-SC-0003666-MR, 2018 WL 898215 (Ky. Feb. 15, 

2018); see also Golden v. Commonwealth, 2016-SC-000179-MR, 2017 WL 1536253 

(Ky. Apr. 27, 2017). Though we ultimately affirmed those convictions, neither case 

presented the issue before us today: whether an investigating officer may testify that 

he believed a criminal suspect to be lying based on the Reid Technique’s methods of 

behavioral analysis. 
7

Det. Bradbury proceeded to describe the mechanics of the Reid 

Technique. A Reid interview begins with a series of questions intended to 

provoke certain physical or verbal responses. Based on the investigating 

officer’s analysis of those responses, he or she will determine whether to 

proceed with questioning. Det. Bradbury described the behavioral analysis 

portion as follows: 

CW: You said the first phase, the behavioral analysis, you look at 

the body language and verbal cues, and you ask questions to 

provoke a response. Are your questions designed to provoke a 

response of guilt?

DB: No.

CW: What do you mean by that?

DB: Its designed to provoke a response. We are looking for body 

language, verbal cues. We are look for things that indicate 

truthfulness or deception. That is what we are looking for.

As Det. Bradbury continued to describe how an interview is initiated, 

Carson objected. He argued that the Commonwealth had not certified Det. 

Bradbury as an expert in behavioral analysis. The Commonwealth responded 

that Det. Bradbury was being offered as a lay witness and the questioning 

concerned his training. The trial court overruled the objection but stated “[Det. 

Bradbury] can testify as to how he was trained and what he was trained to do 

and how he implemented that training...but he cannot come to conclusions on 

truth or honesty.”

Yet, immediately thereafter, Det. Bradbury testified he was trained on his 

ability to determine a suspect’s truthfulness: 
8

CW: Does the Reid technique train you in what verbal or nonverbal 

cues to look for to identify whether a person is being truthful or 

being deceptive?

DB: It does.

CW: Ok, does your analysis of those cues affect how you proceed 

with your interview?

DB: It does.

CW: How so?

DB: If we see indications of deception, more specifically if we see 

groupings or clusters or multiple indicators of deception that may 

drive our decision to proceed into an interrogation.

CW: What if you don’t see a cluster of cues indicating deception? 

DB: I call that the drop back and punt phase. So, at that point we 

have options. We can stop the interview at that point, we can then 

pursue other avenues of investigation, follow up with leads, or 

search for other possible suspects.

Following this testimony, the court sua sponte called a bench conference. 

The court expressed concern that Det. Bradbury was purporting to be a “verbal 

lie detector” through his testimony. After a brief discussion the court 

admonished the jury as follows: 

Ladies and gentlemen, you’ve been hearing testimony about this 

interrogation technique called the “Reid Technique.” You need to 

be advised that the jury is the determiner of credibility and truth, 

okay? You are the fact-finding body, so you do not consider that 

technique as being a determinative factor as to whether anything is 

being truthful or not truthful. Okay? Alright.

But the Commonwealth persisted with veracity questions directed to Det. 

Bradbury and he testified that regarding numerous “clusters” of non-verbal 

and verbal cues in Carson that caused him to elevate the interview to an 
9

interrogation. The Commonwealth emphasized the meaning of this postadmonition testimony in closing argument:

Det. Bradberry told you if there are no clues during the behavioral 

analysis portion, you can drop back and punt. But I want to talk 

about what those cues are. Det Bradbury told you he’s looking for 

statements or indications of involvement, meaning indicators that 

there is validity to these claims of improper sexual behavior. Or in 

the case denial of that involvement, whether those denials are 

truthful. 

Here, Det. Bradbury’s testimony ventured beyond the proper scope of lay 

opinion. Initially, we emphasize the testimony regarding a suspect’s body 

language is proper. Such testimony is fact-based and clearly derived from the 

perception of the interviewing officer. Furthermore, an investigating officer is 

surely permitted to testify as to his or her observations of a defendant during 

the interview and may even offer opinions regarding the defendant’s 

demeanor.19 Det. Bradbury’s testimony in this case, however, concerned what 

he characterized as Carson’s deception as revealed through the Reid Technique

rather than his demeanor. Det. Bradbury testified that he spotted “clusters” of 

deceptive behaviors from Carson. Effectively, he testified that he was able to 

determine that Carson was lying through visual observation of his body 

language. This form of testimony infringes on the “province of the jury.”

20

 

19 See Bowling v. Commonwealth, 942 S.W.2d 293 (Ky. 1997) (holding that 

officer may opine that defendant looked at them strangely or intensely) overruled on 

other grounds by McQueen v. Commonwealth, 942 S.W.2d 293 (Ky. 1997).

20 See Moss, 949 S.W.2d at 583. 
10

This impropriety was compounded by Det. Bradbury’s claims of 

specialized knowledge of behavioral analysis. The detective testified that he 

participated in a four-day training in an advanced interrogation technique, 

developed by a private firm, which permitted him to determine if a person was 

being truthful through an analysis of their behavior. Importantly, Det. 

Bradbury did not claim that this knowledge derived solely from his experience 

as a detective, nor his involvement in numerous similar investigations. 

Instead, his ability to detect deceptive behavior stemmed from his application 

of the principles and mechanics of a technique taught by interrogation

specialists. In doing so, he claimed to possess knowledge beyond that of a lay 

witness. 

The admission of Det. Bradbury’s Reid Technique based opinion 

concerning Carson’s veracity was error. This error was preserved by Carson’s 

contemporaneous objection. We review preserved evidentiary errors under the 

harmless error standard of RCr21 9.24.22 Pursuant to this standard, those 

errors “will be deemed harmless...if we can say with fair assurance that the 

judgment was not substantially swayed by the error.”23 “Our inquiry is not 

simply whether there [is] enough [evidence] to support the result, apart from 

the phase affected by the error. It is rather, even so, whether the error itself 

 

21 Kentucky Rules of Criminal Procedure.

22 Ordway, 391 S.W.3d 762, 774 (Ky. 2013).

23 Brown v. Commonwealth, 313 S.W.3d 577, 595 (Ky. 2010).
11

had substantial influence. If so, or if one is left in grave doubt, the conviction 

cannot stand.”24

Here, we are significantly concerned that Det. Bradbury’s testimony had 

a substantial influence on the outcome of the case. The pillars of the case 

against Carson were his interview with Det. Bradbury, during which he made 

inculpatory statements, and Stephen’s testimony. Throughout the four-hour 

interview, Carson makes inculpatory statements as to numerous criminal acts. 

However, he also repeatedly denied many of Det. Bradbury’s assertions 

regarding his interactions with Stephen. In a case where a significant portion 

of the evidence consists of the accused’s own words, the erroneous 

introduction of improper opinion testimony concerning the veracity of those 

statements risk playing an outsized role in the judgment. 

Here, the trial court noted the problematic nature of the testimony and 

attempted to provide an admonishment to the jury that it was not bound to 

accept Det. Bradbury’s assertions as to Carson’s credibility. And under our 

case law, the “jury is presumed to follow an admonition to disregard evidence 

and the admonition thus cures any error.”25 Such presumption can be 

overcome by a showing either that there is an (1) “overwhelming probability 

that the jury will be unable to follow the court’s admonition and there is a 

strong likelihood that the effect of the inadmissible evidence would be 

 

24 Id. (internal quotations and citations omitted).

25 Dunlap v. Commonwealth, 435 S.W.3d 537, 570 (Ky. 2013).
12

devastating to the defendant,” or (2) the question asked lacks any factual basis 

and was highly inflammatory.26 

Though we commend the trial court for quickly attempting to remedy the

introduction of inappropriate testimony, the admonishment provided did not 

wholly address the error presented. Even after the admonishment, Det. 

Bradbury testified multiple times that he noted numerous cues in Carson’s 

behavior that led him to proceed to the second phase of the interview. In doing 

so, he further perpetuated the error that the admonishment was intended to 

correct. Prior to the admonishment, he testified that these “clusters” of “cues” 

were behavioral indicators of untruthfulness. His post-admonishment 

statements, therefore, reaffirmed the specialized nature of his testimony and 

restated his opinion that he observed untruthful body language in Carson. 

Though an admonishment is a powerful tool for redressing past errors, 

the perpetuation of an error post-admonishment necessarily weakens any 

effectiveness it may claim. In this case, there is a significant possibility that 

the jury failed to recognize the remedial force of the admonishment due to the 

continued introduction of problematic testimony. At bottom, we cannot 

conclude that the erroneous admission of this testimony was harmless. And, 

when considering the actual language of the admonishment, it permits the jury 

to consider the Reid Technique credibility testimony to be considered, just not 

as a “determinative factor”.

 

26 Johnson v. Commonwealth, 105, S.W.3d 430, 441 (Ky. 2003).
13

B. Carson’s Fifth Amendment rights were not violated because he 

failed to clearly invoke his right to remain silent.27

Carson argues that the trial court failed to suppress his confession to 

Det. Bradbury in violation of his Fifth Amendment rights. Our review of a 

denial of a motion to suppress evidence consists of two steps.28 First we review 

the trial courts factual findings for clear error; then, we review the trial court’s 

application of the law to those facts de novo.29 Carson claims that he 

attempted to invoke his right to remain silent twice during the interview and 

was ignored. 

When a suspect invokes his right to remain silent, any custodial 

interrogation must immediately cease.30 To be effective, however, any 

invocation of the right must be clear and unambiguous.31 That is, a suspect 

must articulate his intention to remain silent “in a manner that a reasonable 

police officer in the situation would understand that the suspect wished for 

questioning to cease.”32

Carson identifies two statements which he alleges should have put a 

reasonable officer on notice that he intended to end the interrogation. At one 

point during the interview, Carson tells Det. Bradbury to “please stop.” Shortly 

 

27 This argument was preserved by Carson’s motion to suppress his statements 

from the interview.

28 Welch v. Commonwealth, 149 S.W.3d 407, 409 (Ky. 2004).

29 Id.

30 See Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).

31 Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010).

32 Meskimen v. Commonwealth, 435 S.W.3d 526, 531 (Ky. 2013).
14

thereafter, Carson states “I want to get out of here.” Considered in isolation, 

each of these statements could be considered as expressions of intent to end 

the questioning. Considered in context, however, neither statement is clear 

and unequivocal. 

The first statement “please stop” occurred after Det. Bradbury accused 

Carson of performing oral sex on Stephen. Carson conceded earlier in the 

interview that some touching and kissing had occurred but denied performing 

oral sex. After being confronted with the accusation, he said “Please stop. I’m 

telling the truth.” A reasonable officer in the situation could understand that 

statement to mean “please stop accusing me of performing oral sex” rather 

than “please stop the interview.” As such, this statement permits legitimate 

ambiguity in its interpretation and failed to invoke the right to remain silent.

The second statement, while less ambiguous, still failed to clearly 

indicate that Carson intended to remain silent and end the interrogation. After 

Det. Bradbury’s repeated assertions that Carson was not providing the entire 

story, the following exchange occurred:

Carson: I don’t... I want to get out of here. No, I know, no...I 

understand you’re doing your job I know that.

Det. Bradbury: And I know you want to get out of here, buddy, 

we’ve got to get this resolved.

Carson: I didn’t mean it like that. I mean, the stuff I told you, is 

what happened. That’s it.
15

Carson continued speaking immediately after stating that he wished to 

leave. Bullitt v. Commonwealth proves instructive.33 There, the defendant told 

officers that he was “done speaking,” but continued to speak to detectives on 

his own volition afterwards.34 As a result, we held his otherwise clear 

invocation was rendered ineffective.35 Here, Carson’s statement was less clear

and he continued to engage with Det. Bradbury immediately. As a result, the 

statement was insufficient to invoke Carson’s right to remain silent. Because 

Carson’s Fifth Amendment rights were not violated, the trial court did not err 

in denying the motion to suppress.

C. Supreme Court Rule (SCR) 3.130 (3.4)

Finally, Carson asserts that the prosecutor impermissibly gave unsworn 

testimony through her questioning of Stephen on re-direct examination. 

Because it is unlikely to recur, we do not address the issue fully. We 

emphasize, however, that SCR 3.130 (3.4) plainly prohibits an attorney from 

communicating personal knowledge of the facts at issue. On remand, counsel 

shall take care to conform their questioning to the requirements of this rule, as 

expressed in Holt v. Commonwealth.

36

 

33 595 S.W.3d 106, 117 (Ky. 2019).

34 Id.

35 Id. 

36 219 S.W.3d 731, 732-33 (Ky. 2007). See also Fisher v. Commonwealth, _ 

S.W.3d _, 2019-SC-0738-MR, 2021 WL 1133592 (Ky. 2021)(finding that an attorney 

erred when suggesting that they possessed personal knowledge due to an out of court 

conversation with a witness, though such error was found to be harmless).
16

III. Conclusion

For the reasons set forth above, we reverse in part the judgment of the 

Kenton Circuit Court and remand the case for further proceedings consistent 

with this opinion.

Minton, C.J.; Conley, Hughes, Keller, Lambert, Nickell, and VanMeter, 

J.J.; sitting. Minton, C.J.; Conley, Hughes, Lambert, and VanMeter, J.J.;

concur. Nickell, J., concurs in result only. Keller, J., dissents without opinion. 

COUNSEL FOR APPELLANT: 

Aaron Reed Baker 

Assistant Public Advocate 

Frankfort, KY 

COUNSEL FOR APPELLEE: 

Daniel Cameron 

Attorney General of Kentucky 

Mark D. Barry 

Assistant Attorney General 

Frankfort, KY