CONCURRING:
I agree completely with the Court’s conclusion that the declaration of a mistrial in this case was not an abuse .of the trial court’s discretion. I write separately in hopes that a fuller account of the trial court’s proceedings and this Court’s standard of review will serve as a response to the concerns raised by the dissent.
RELEVANT FACTS
Near the outset of her opening statement, counsel for Sneed explained to the jury that the defendant denied the sex-offense allegations that had been leveled against him and contended that the alleged victim, the defendant’s granddaughter, had fabricated them. Counsel acknowledged *797that was a contention the jury would not, and should not, entertain lightly. The granddaughter had alleged serious crimes, and the jury would rightly be reluctant to believe that someone might lie about something so grave. Nevertheless, defense counsel continued, evidence along several different fronts would show that in this case there was plenty of reason to doubt the veracity of the granddaughter’s accusations. Counsel then proceeded to outline the different types of evidence which, she asserted, would give the jury pause.
First, counsel promised evidence tending to show that the victim’s father, Jimmy (the defendant’s son), was an inveterate liar and manipulator (“Jimmy used lying as a way to retaliate against people. He did it against James [the victim’s grandfather].”). That was important, counsel said, for a couple of reasons, one general and one more specific. The general reason was that the father, by example, had passed his penchant for deceit and manipulation on to his daughter (“She learned that was a way to get back at people.”), who was also a liar and manipulator. And, more specifically, the granddaughter’s present accusations illustrated both her and her father’s tendencies. She accused her grandfather, counsel said, at a time when she was mad at her grandfather for interfering in her relationship with an older boy. It was also at a time, counsel said, when the father was feuding with the grandfather, and he, the father, had manipulated his daughter into siding with him in the feud.
Another sort of evidence also suggesting false accusations, counsel continued, was evidence tending to show that the granddaughter’s accusations had changed over time. She had given a number of statements to different investigators, and those statements included, according to counsel, significant discrepancies. One such discrepancy concerned the granddaughter’s statement to one investigator that the sexual assaults had been preceded by the defendant’s forcing upon-the victim white, prescription pills which had put her to sleep.
At that point the Commonwealth objected. From the ensuing bench conference (which expanded into a sort of hearing when the jury was excused), it appears that prior to trial the Commonwealth, had sought clearance under Kentucky Rule of Evidence (KRE) 404(e) to introduce evidence concerning the pills, but at the hearing on the Commonwealth’s motion the granddaughter testified and essentially recanted her prior statement. She acknowledged that her grandfather had occasionally given her white pills, but only, .she testified at the KRE 404 hearing, at her request when she had a headache; and never as a prelude to any sort of sexual contact. In light of that testimony, the trial court had denied the Commonwealth’s motion for leave to introduce pill evidence prior to trial, ruling all such evidence irrelevant. Defense counsel’s reference to the pills, the Commonwealth now complained, violated that pretrial ruling.
Defense counsel responded by pointing out that she was not interested in the pill evidence as such, but rather in the granddaughter’s glaringly inconsistent statements to the investigator and to the court. After considerable discussion, the court agreed with defense counsel that the inconsistent statements were relevant to the defense and overruled the Commonwealth’s objection.
Before recalling the jury and allowing defense counsel to continue with her opening, the court gave the parties a brief recess. When the record resumes, the jury is still absent and the Commonwealth is renewing its objection to any reference to the pills, but this time is moving for a *798mistrial on the ground not only that defense counsel’s reference to the pills was a blatant violation of a prior evidentiary ruling, but also on the ground that defense counsel’s earlier remarks about the victim’s father, remarks characterizing him as a liar, ran afoul of a general rule against that sort of witness characterization.
The court gave the parties thirty minutes to look for pertinent authority on this latter'issue, and when the héaring recommenced the Commonwealth referred the court to Moss v. Commonwealth, 949 S.W.2d 579 (Ky.1997), for the proposition that no witness, expert or otherwise, should be asked to characterize the testimony of another witness as a lie or lying. Although acknowledging that Moss did not apply directly to the present situation, the court agreed with the Commonwealth that Moss’s general solicitude for the jury’s role as credibility determiner was pertinent, and that defense counsel’s opening statement references to key prosecution witnesses as liars were at odds with that fundamental principle. The trial court also referred to KRE 608, the rule governing evidence about a witness’s character for truthfulness, and expressed concern that defense counsel’s characterizations were not consonant with the limitations that rule imposes on how and when a witness’s character for truthfulness can be attacked.
The court thus agreed with the Commonwealth that defense counsel’s references to the victim’s father as a liar were improper. It did not agree, however, that a mistrial was the appropriate remedy. The Commonwealth argued in effect that by characterizing them as “liars” defense counsel had 'tainted beyond recall the victim’s and the victim’s father’s characters for truthfulness such that the jury could not-be relied upon to give their testimonies a fair hearing. The trial court rejected that argument. Reading from Cardine v. Commonwealth, 283 S.W.3d 641 (Ky.2009), concerning the standard for granting and the potential double jeopardy consequences of mistrials, the court ruled that the Commonwealth’s interest in a jury not improperly biased against its witnesses could, at that point at least, be adequately protected by an admonition. Accordingly, once the jury had reassembled, the court admonished it as follows: “Statements made by counsel that a particular witness is a liar are to be disregarded. The credibility of any and all witnesses during the course of trial is within the exclusive province of the jury and is for you to decide.”
The jury thus advised, defense counsel resumed her opening. She briefly recalled her earlier remarks about the granddaughter’s inconsistent statements concerning the present allegations, and then asserted that yet a third sort of evidence cast doubt on the granddaughter’s veracity. This evidence, counsel said, included notes compiled, by the girl’s counselor during or soon after therapy sessions, notes that, defense counsel continued, made reference to the fact that the granddaughter’s “issues with lying” had emerged as a concern in therapy-
The Commonwealth promptly objected and renewed its motion for a mistrial. The counselor’s notes were inadmissible hearsay, the Commonwealth argued, and so could not be referred to during opening statement. Even more importantly, the reference to the granddaughter as, in essence, “a liar” was grossly improper in light of the admonition the court had given the jury not five minutes before.
■The court allowed defense counsel to respond. She maintained that hearsay was not- an issue because the counselor would testify. She further maintained that a counselor’s characterization of a person as having “issues with lying” was not the *799same as characterizing the person as “a liar,” which is what she had understood the court to have forbidden. She also objected to a mistrial and offered her view that such a ruling would bar further prosecution.
The court did not this time ask for more research and it did not rehash the mistrial standards it had noted just a few minutes earlier. It observed that defense counsel’s characterization of the victim as one who, in the eyes of her counselor, had “issues with lying” raised the same sort of Moss and KRE 608 concerns as the earlier characterization of the victim’s father as “a liar.” Moss deplored, the court noted, the characterization of another witness’s testimony as lying, even characterizations, by experts. The court did not expressly rule that an admonition could no longer assure the Commonwealth an unbiased jury, but given the court’s clear awareness of the mistrial standard and its prior decision to admonish, that is a fair interpretation of its decision not to give a second admonition. The court instead declared a mistrial.
Sneed contends that by declaring a mistrial the trial court erred in either of two ways. Either there were no grounds for a mistrial, because there was nothing improper about defense counsel’s opening statement, or, even if there was some impropriety, counsel’s opening statement did not provide adequate grounds for a mistrial because the presumed impropriety would have proved harmless: regardless of counsel’s statements the evidence at trial would eventually have made the same points.3
The dissent raises similar concerns. It, too, finds nothing particularly objectionable in defense counsel’s riding roughshod over the rules governing not Only what evidence is admissible, but how and when certain types of evidence may be admitted. That is not the dissent’s main concern, however. Rather, even if defense counsel did exceed somehow the bounds of a proper opening statement, the dissent maintains that the trial court misapplied the standard for granting a mistrial, and that error, the' dissent maintains, if this Court is to be consistent with other mistrial rulings, implicates the double jeopardy clauses of the federal and state constitutions so as to bar Sneed’s further prosecution. It is this latter concern of the dissent that I want in particular to address, as it seems to me to misconceive our standard of review. Before turning to that question, I will briefly address and second the majority Opinion’s conclusion that defense counsel’s opening was indeed improper.
DISCUSSION
I. Defense Counsel Exceeded the Proper Bounds of Opening Statement.
In establishing the order of proceedings at a criminal trial, Kentucky Rule of Criminal Procedure (RCr) 9.42 provides that once the jury has been sworn “(a) The *800Attorney for the Commonwealth shall state to the jury the nature of the charge and the evidence upon which the Commonwealth relies to support it; (b) The defendant or the defendant’s attorney may state the defense and the evidence upon which the defendant relies to support it or the defendant may reserve opening statement until the conclusion of the evidence for the Commonwealth.” Referring to the prosecutor’s role under part (a) of this rule, this Court has observed that “ ‘the only legitimate purpose of an opening statement is so to explain to the jury the issue they are to try that they may understand the bearing of the evidence to be introduced.’... Further, ‘it is never proper in an opening statement for counsel to argue the case or to give his personal opinions or inferences from the facts he expects to prove.’ ” Kiper v. Commonwealth, 399 S.W.3d 736, 748 (Ky.2012) (citations omitted). The Court has held that under the rule, a prosecutor’s use of inadmissible evidence regarding a disputed fact during his opening statement is improper. Fields v. Commonwealth, 12 S.W.3d 275 (Ky.2000).
Although the Court appears never expressly to have held that the rule imposes like restrictions on opening statements by the defense, I concur in the majority’s apparent presumption that it does. Cf. Supreme Court Rule (SCR) 3.130-3.4(e) (“A lawyer shall not ... in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.”).4 Under these rules, the opening statement by either side is limited to outlining what counsel in good faith expects to prove or support by evidence that is available, relevant, and admissible.
As the majority opinion notes, defense counsel’s characterization during her opening statement of the victim and her father as “liars” ran afoul of those rules because under Moss no witness at trial would have been allowed to characterize the victim’s or her father’s testimony as “a lie,” and under KRE 608 no witness would have been allowed to characterize the victim herself or her father as “a liar.” To be sure, depending on the impeachment evidence ultimately introduced, it may have been a tolerable tactic for defense counsel to label the victim and/or her father as “liars” during *801closing argument, but that disparagement was improper during opening. It was plainly intended, furthermore, to create a presumption in the jury, prior to any testimony, against the Commonwealth’s key witnesses, and as such the trial court was well within its discretion when it admonished the jury not to make that presumption. ■
As the majority opinion also notes, defense counsel’s reference, on the heels of the trial court’s admonition, to notes by the victim’s Seven Counties Services counselor to the effect that the victim had “issues with lying,” was improper for a number of reasons. As with any other witness, the counselor would never have been allowed to characterize the victim’s testimony as a lie or the victim as a liar. If Sneed’s claim is that the victim’s “issue[] with lying” is something different from the character issue addressed by KRE 608, then questions of expertise under KRE 702 and 703 must be addressed. The counselor’s notes, moreover, were not only hearsay but were subject to KRE 506, the counselor-client privilege. Under that rule, “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.” KRE 506(b). All of these rules, of course, allow for the admission of otherwise inadmissible evidence under certain circumstances. See, e.g., KRE 506(d), exceptions to the counselor-client privilege; Cf, e.g., Commonwealth, v. Barroso, 122 S.W.3d 554 (Ky.2003) (discussing the limited admissibility of evidence subject to KRE 507, the psychotherapist-patient privilege). However, the burden of establishing the exception is unquestionably on the proponent of the evidence, and that burden includes raising the issue in a timely manner. I concur fully in the majority opinion’s conclusion that defense counsel’s reference to the victim’s counselor’s notes without having secured a ruling on their admissibility was highly improper, and the impropriety was only compounded by the fact that the notes referred to the victim’s “issues with lying.” Here again, defense counsel’s, purpose, plainly, was to prejudice the jury against the victim prior to her testimony, and the question thus becomes did that impropriety and the immediately preceding one “manifestly necessitate” a mistrial. They clearly did.
II. The Trial Court Did Not Abuse Its Discretion By Declaring a Mistrial,
Actually, the manifest need for a mistrial is not exactly the question before us. That was the question that confronted the trial court, which, as noted above, initially denied the Commonwealth’s motion for a mistrial, but granted its subsequent motion when defense counsel persisted in her premature and improper efforts to impugn the veracity of key prosecution witnesses. The precise question before this Court, however, is not whether defense counsel’s improper opening statement manifestly necessitated a mistrial, but rather whether the trial court abused its discretion in deciding that it did. Cardine v. Commonwealth, 283 S.W.3d at 641. The United States Supreme Court addressed these related but distinct questions in Arizona v. Washington, 434 U.S. at 497, 98 S.Ct. 824, which, like this case, involved the declaration of a mistrial following what the state trial court deemed unduly prejudicial comments by defense counsel during his opening statement.
As the majority Opinion explains, under the Double Jeopardy clauses of both the federal and our Kentucky constitutions, when a mistrial has been declared, retrial of the defendant is not allowed unless the *802defendant consented to the mistrial, Cardine, 283 S.W.3d at 647 (citing United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976), or unless the mistrial was compelled by “manifest necessity.”) Cardine, 283 S.W.3d at 647; Arizona v. Washington, 434 U.S. at 505-06, 98 S.Ct. 824 (citing United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824)). In Washington, the United States District Court and the Court of Appeals for the Ninth Circuit agreed that the mistrial had been entered over the defendant’s objection and in the absence of “manifest necessity,” and so granted and upheld, respectively, the defendant’s petition for and award of habeas corpus relief. Reversing, the Supreme Court explained that the Court of Appeals.had “applied an inappropriate standard of review to mistrial rulings of this kind.” 434 U.S. at 503, 98 S.Ct. 824.
The Supreme Court acknowledged the appropriateness of the “manifest necessity” standard as a guide to trial courts confronted, in a variety of cases, with requests for mistrials. “Nevertheless,” the Court observed,
those words [“manifest necessity”] do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge. Indeed, it is manifest that the key word “necessity” cannot be interpreted literally; instead, contrary to the teaching of Webster, we assume that there are degrees of necessity and we require a “high degree” before concluding that a mistrial is appropriate. The question whether that “high degree” has been reached is answered more easily in some kinds of case's than in others.
434 U.S. at 506-07, 98 S.Ct. 824 (footnotes omitted).
Thus, the Court explained, the degree of appellate scrutiny given to a trial judge’s finding of manifest necessity will vary depending on the underlying facts. At one end of the spectrum, a trial judge’s finding of manifest necessity is entitled to the “highest degree of respect” when juror bias or a hung jury is involved, 434 U.S. at 510-11, 98 S.Ct. 824. At the other end of the spectrum, the “strictest” appellate scrutiny is appropriate when the finding of manifest necessity is premised on “the unavailability of critical prosecution evidence, or when there is reason to believe that the prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage over the accused.” 434 U.S. at 508, 98 S.Ct. 824 (footnotes omitted).
With respect to cases, such as Washington, in which potential jury bias was the problem confronting the trial court, the Court recognized that
the extent of the possible bias cannot be measured, and that the [federal] District Court was quite correct in believing that some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions. In a strict, literal sense, the mistrial was not “necessary.” Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial. judge’s evaluation of the likelihood that the impartiality of one or more jurors may have been affected by [defense counsel’s] improper comment. ... An improper opening statement unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal. Indeed, such statements create a risk, often not present in the individual juror bias situation, that the entire panel may be tainted. The trial judge, of course, may instruct the jury to disregard the *803improper comment. In extreme cases, he may discipline counsel, or even remove him from the trial as he did. in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267. Those actions, however, will not necessarily remove the risk of bias that may be creat- . ed by improper argument. Unless unscrupulous defense counsel are to be allowed an unfair advantage, the trial judge must have the power to declare a mistrial in appropriate cases. The interest in orderly, impartial procedure would be impaired if he were deterred from exercising that power by a concern that any time a reviewing court disagreed with his assessment of the trial situation a retrial would .automatically be barred. The adoption of a stringent standard of appellate review in this area, therefore, would seriously impede the trial judge in the proper performance of his “duty, in order to protect the integrity of the trial, to take prompt and affirmative action to stop ... professional misconduct.” Id., at 612, 96 S.Ct. at 1082.
434 U.S. at 511-13, 98 S.Ct. 824 (citations and footnotes omitted).
To be sure, even in the hung jury and biased jury contexts, where trial court'mistrial decisions are due considerable deference, “reviewing courts have an obligation to satisfy themselves that, in the words of Mr. Justice Story [in United States v. Perez, supra ], the trial judge exercised ‘sound discretion’ in declaring a mistrial.” 434 U.S. at 514, 98 S.Ct. 824. This is not, however, a backdoor invitation to the reviewing court to substitute its “manifest necessity” opinion for that of the trial court. The reviewing court, rather, is to satisfy itself, “by close examination of the record,” United States v. Sloan, 36 F.3d at 400, that the trial court did not act precipitately, but evinced an appropriate concern for the possible double jeopardy consequences of an erroneous ruling; gave both the defense counsel and the prosecutor a full opportunity to explain their positions; and made a ruling neither irrational nor irresponsible in light of the particular facts. Washington, 434 U.S. at 514-15, 98 S.Ct. 824.
An examination of the full record in this case makes it clear that the trial court exercised a sound discretion. Its mistrial ruling was both well informed and duly deliberate. Indeed, its reading of pertinent passages from Cardine on the record makes it abundantly clear that it was aware of the mistrial standard and of the important constitutional interests at stake. The trial court’s initial denial of the Commonwealth’s motion and its opting instead for-an admonition makes it equally clear that it was aware of and considered alternatives to a mistrial. It twice gave both parties a full opportunity to explain their positions. Its ultimate decision to abort the trial came only after defense counsel ventured again to paint a witness as a liar, this time by reference to privileged counselor notes which were inadmissible absent a court ruling that they were admissible. While some judges might have decided differently, this ruling can hardly be deemed irrational or irresponsiblé. Defense counsel’s persistent attempts—in the face of an admonition—to bias the jury against the Commonwealth’s key witnesses before their testimonies and the introduction of any evidence, gave the court reasonable grounds to conclude that the Commonwealth’s right to a fair trial had been compromised. A second admonition, the court could reasonably have concluded, was apt not to be effective, and, indeed, could have affected the' defendant’s right to a fair trial by casting defense counsel in an unfavorable light.
CONCLUSION
In sum, I concur fully in the majority’s conclusion that the declaration of a mistrial *804in this case was not an abuse of discretion. The dissent’s contrary position rests, it appears, on a cursory review of the record and a failure to distinguish the different roles, as emphasized by the United States Supreme Court in Washington, of trial and appellate courts.
Minton, C.J., joins.. Sneed thus would require trial courts to adopt, the wait-and-see .approach the trial court employed in Lickliter v. Commonwealth, 249 Ky. 95, 60 S.W.2d 355 (1933), whenever counsel refers in his or her opening to evidence that might become admissible—as impeachment or rebuttal evidence, say—depending on the course of trial. Neither Sneed nor the Commonwealth develops this idea, however, and so the Court correctly does not address it. Tying the trial court’s hands in that way seems a bad idea to me, one at odds with what is supposed to be a genuine discretion in the trial court, but in any event such a rule would not apply in cases like this one, .where counsel did not simply identify potentially admissible evidence, but rather used merely potential (and highly dubious) evidence to infer and argue—activities appropriate to closing argument, but not appropriate to opening statements. '
. And see, Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (upholding grant of mistrial based on defense counsel’s references during opening statement to the fact that the defendant’s prior conviction had been reversed on the ground that the prosecutor had violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)); Simmons v. State, 208 Md.App. 677, 57 A.3d 541 (2012) (upholding grant of mistrial based on defense counsel’s disclosure during opening statement that the defendant had offered to take a lie detector test); United States v. Shaw, 829 F.2d 714 (9th Cir.1987) (upholding grant of mistrial based on defense counsel's opening statement anticipating testimony by a witness who had already indicated that she would invoke the Fifth Amendment); Pavey v. State, 764 N.E.2d 692 (Ind.App.2002) (upholding grant of mistrial based on defense counsel's opening statement to the effect that a key prosecution witness had been "bought and paid for” by plea agreement with the State); Commonwealth v. Murray, 22 Mass. App.Ct. 984, 496 N.E.2d 179 (1986) (upholding grant of mistrial based on defense counsel’s references during opening statement to prejudicial evidence some of which was irrelevant and some was not supported by counsel’s good-faith belief in its existence); but see United States v. Sloan, 36 F.3d 386 (4th Cir. 1994) (holding that defendant’s decision not to testify did not necessitate a mistrial notwithstanding defense counsel’s limited anticipation of that testimony during opening statement).