## Facts

- Fred Lee Colvard lived in the same apartment complex as two girls, about six and seven years old.
- The Commonwealth alleged Colvard entered the girls’ bedroom at night and sexually assaulted them.
- The children told their mother about the abuse; she sought medical evaluation.
- During medical examinations, each child described the assault and identified “Fred”/Colvard as the perpetrator to multiple medical providers.
- At trial, three medical or related witnesses testified to the children’s statements, including the identification of Colvard.
- The children also testified at trial.
- Physical or forensic evidence did not confirm abuse; medical evidence did not conclusively exclude it.
- Over objection, the trial court admitted the medical witnesses’ identification testimony under KRE 803(4).

## Issues

1. Whether child victims’ statements to medical personnel identifying the perpetrator were admissible under KRE 803(4) as statements for medical diagnosis or treatment.
2. Whether prior precedent interpreting KRE 803(4) to allow perpetrator identification in child sexual abuse cases should be overruled or limited.
3. Whether erroneous admission of hearsay identification testimony was harmless given the remaining evidence.

## Decision

- The Kentucky Supreme Court reversed the convictions and remanded for a new trial.
- The court held the children’s statements identifying Colvard were inadmissible under KRE 803(4).
- The court rejected the broader interpretation of KRE 803(4) that had permitted perpetrator-identification statements without a clear medical-treatment nexus.
- The court concluded the hearsay errors, including cumulative repetition through multiple professional witnesses, were not harmless.

## Legal Principles

- Under KRE 803(4), statements are admissible only if made for purposes of medical diagnosis or treatment and reasonably pertinent to that purpose.
- Statements describing symptoms, pain, and the general character or cause of an injury may qualify; identification of an assailant generally does not, absent a specific treatment-related reason.
- The relevant inquiry centers on whether the declarant understood the information to be connected to receiving medical care, not merely whether a provider asked the question.
- Repeated hearsay identification through multiple adult witnesses may improperly bolster a child complainant’s credibility and can be prejudicial where the case turns on credibility and corroboration is limited.
- An evidentiary error is not harmless when there is a substantial possibility it affected the verdict.

## Conclusion

The court ordered a new trial because the prosecution improperly used KRE 803(4) to admit child victims’ out-of-court identification of the alleged perpetrator through medical witnesses, and the resulting cumulative bolstering was sufficiently prejudicial to require reversal.


Colvard v. Commonwealth, 309 S.W.3d 239 (Ky. 2010)