Ky. Sup. Ct. Order 2024-19

Supreme Court of Kentucky

2024-19

ORDER

IN RE: AMENDMENT OF RULE 506 AND RULE 702 OF THE

KENTUCKY RULES OF EVIDENCE (KRE)

In accord with KRE 1102(a), and the Chief Justice having reported to the

Kentucky General Assembly proposed changes to KRE 506 and KRE 702, and

the General Assembly not having disapproved amendment to the Rules of

Evidence by resolution during the 2024 Regular Session, the Kentucky Rules of

Evidence are hereby amended, effective July 1, 2024, as follows:

A. KRE 506 Counselor-client privilege

KRE 506 shall read:

(a) Definitions. As used in this rule:

(1) A “counselor” includes:

(A) A certified school counselor who meets the requirements

of the Kentucky Board of Education and who is duly

appointed and regularly employed for the purpose of

counseling in a public or private school of this state;

(B) A sexual assault counselor, who is a person engaged in a

rape crisis center, as defined in KRS Chapter 421, who

has undergone forty (40) hours of training and is under

the control of a direct services supervisor of a rape crisis

center, whose primary purpose is the rendering of advice,

counseling, or assistance to victims of sexual assault;

(C) A certified professional art therapist who is engaged to

conduct art therapy under KRS 309.130 to 309.1399;

(D) A licensed marriage and family therapist or marriage and

family therapy associate as defined in KRS 335.300 who

is engaged to conduct marriage and family therapy

pursuant to KRS 335.300 to 335.399;

(E) A licensed professional clinical counselor or a licensed

professional counselor associate as defined in KRS

335.500;

(F) An individual who provides crisis response services as a

member of the community crisis response team or local

community crisis response team under KRS 36.250 to

36.270;

(G) A victim advocate as defined in KRS 421.570 except a

victim advocate who is employed by a Commonwealth's

attorney under KRS 15.760 or a county attorney

pursuant to KRS 69.350; and

(H) A Kentucky licensed pastoral counselor as defined in

KRS 335.605 who is engaged to conduct pastoral

counseling under KRS 335.600 to 335.699.

(2) A “client” is a person who consults or is interviewed or assisted

by a counselor for the purpose of obtaining professional or

crisis response services from the counselor.

(3) A communication is “confidential” if it is not intended to be

disclosed to third persons, except persons present to further the

interest of the client in the consultation or interview, persons

reasonably necessary for the transmission of the

communication, or persons present during the communication

at the direction of the counselor, including members of the

client's family.

(b) General rule of privilege. A client has a privilege to refuse to disclose

and to prevent any other person from disclosing confidential

communications made for the purpose of counseling the client,

between himself, his counselor, and persons present at the direction

of the counselor, including members of the client's family.

(c) Who may claim the privilege. The privilege may be claimed by the

client, his guardian or conservator, or the personal representative of a

deceased client. The person who was the counselor (or that person's

employer) may claim the privilege in the absence of the client, but

only on behalf of the client.

(d) Exceptions. There is no privilege under this rule for any relevant

communication:

(1) If the client is asserting his physical, mental, or emotional

condition as an element of a claim or defense; or, after the

client's death, in any proceeding in which any party relies upon

the condition as an element of a claim or defense.

(2) If the judge finds:

(A) That the substance of the communication is relevant to

an essential issue in the case;

(B) That there are no available alternate means to obtain the

substantial equivalent of the communication; and

(C) That the need for the information outweighs the interest

protected by the privilege. The court may receive evidence

in camera to make findings under this rule.

B. KRE 702 Testimony by experts

KRE 702 shall read:

If scientific, technical, or other specialized knowledge will assist the trier

of fact to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience, training,

or education, may testify thereto in the form of an opinion or otherwise, if

the proponent demonstrates to the court that it is more likely than not

that:

(1) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principles and methods;

and

(3) The witness’ opinion reflects a reliable application of the

principles and methods to the facts of the case.

Entered this 24th day of June 2024.

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CHIEF JUSTICE

All sitting; all concur.