Kentucky indictment process

Kentucky indictment process DEFAULT

A Criminal Defense Attorney’s Guide to Criminal Courts in Kentucky

Criminal Courts Guide

In the Commonwealth of Kentucky there are four courts that hear criminal trial matters: State District Court, State Circuit Court, State Juvenile Court, and Federal District Court. Which court the case will be in depends upon the type of case, and potentially, how far along the case is. This artcle focuses on defending adult criminal cases in Kentucky District and Circuit Courts. It is also useful for those defending a Youthful Offender Juvenile case that has been transferred to adult Circuit Court. This article does not attempt to cover the specifics of juvenile or federal courts, though a future volume may address them.

Kentucky District Court Criminal Cases

Kentucky District Courts are the lowest level trial court in Kentucky. They are courts of limited jurisdiction and can only hear certain matters. These include: violations of county ordinances, traffic infractions, misdemeanor cases, and felony preliminary hearings.

Kentucky has 60 judicial districts, and each county has its own physical district court (and with a few exceptions two). There are 116 judges that sit on the district court benches for the various counties. Judges are selected by election, and they serve four-year terms.

If you are defending a misdemeanor case it will be heard and tried in district court. Many times, though not always, felony cases start out in district court at the preliminary hearing stage.

Misdemeanor Cases in District Court

The District Court has jurisdiction to hear misdemeanor cases that involve fineable offenses and offenses that can receive up to twelve months in jail. A District Court will handle all misdemeanors for the entire trial process: arraignment, pretrial conferences, trial, and sentencing. Appeals of decisions made in District Court are heard by that county’s Circuit Court.

Misdemeanor cases are prosecuted by the County Attorney for that County. County Attorneys are elected and serve four year terms.

Arraignment in District Court

Arraignment is the formal reading of charges against a person. If you are charged with a misdemeanor, you may be able to waive your appearance if a criminal defense attorney appears on your behalf. If you are charged with a felony, your appearance is mandatory. At arraignment, you will enter a plea—most commonly “not guilty” though in some instances a defendant may accept an offer or enter a diversion program from the arraignment docket. The District Court lacks jurisdiction to enter a guilty plea at arraignment, so the Court will always enter a “not guilty” plea in a felony case.

In most counties, misdemeanors will be set for a pretrial conference and felonies will be set for a preliminary hearing, as discussed below.

Pretrial Conferences in District Court

A pretrial conference is an opportunity to negotiate your case with the County attorney. In some cases they will make an offer and the defendant will accept it. Other times the case will be continued, typically for the government to produce some evidence to the defendant. In misdemeanor cases, the defendant’s presence can be waived, though check with your criminal defense attorney to find out whether the your judge will allow this.

Misdemeanor Trial in Kentucky District Court

Whole book have been written on the subject of trial. This article will not go into depth about trial or trial strategy. There are two types of trials held in a District Court criminal case: a bench trial or a jury trial. It will be up to your criminal defense attorney to decide which is better for your situation. In a bench trial, the judge hears evidence and determines your guilt. In a jury trial, six members of the community hear the evidence, determine your guilt, and make a recommendation on punishment. Most commonly criminal defense attorneys choose to have jury trials, though in some cases a bench trial may be advantageous.

Felony Cases in District Court

Any offense that carries over twelve months in jail is, by Kentucky law, a felony, and must be heard by the Circuit Court. However, the District Court has limited jurisdiction to hold a preliminary hearing in a felony case. If a defendant is in custody, on a felony charge, and has not been indicted by the grand jury, the District Court must hold a preliminary hearing within ten days after arraignment to determine whether there is probable cause to continue to hold the defendant. If the defendant has bonded out, the District Court must hold a preliminary hearing within twenty days, to determine whether the defendant’s bond should continue to be held. Preliminary hearings will be discussed in fuller detail in another section.

Preliminary Hearings in District Court

At the preliminary hearing, the government must present evidence that establishes probable cause that a felony crime was committed by the defendant. Probable cause has been defined as “a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true”. As applied to the determination of the District Court, at the preliminary hearing, the District Court judge reviews the government’s evidence to determine whether there is enough evidence to meet the probable cause standard.

If the District Court finds that the government’s evidence is lacking, the defendant can be held to answer for a lesser charge (a misdemeanor or violation), or discharged entirely from bail, depending upon the circumstances of the case. If the District Court finds that the government’s evidence is sufficient (most commonly the case), then the defendant is held on bond pending the meeting of the grand jury.

Under the rules of Criminal Procedure, the grand jury must indict the defendant within sixty days, or the defendant is discharged from bond and either released from custody, or their money is refunded. An attorney or pro se defendant is required to file a motion (or agreed order, check your county’s local practice), in order for the defendant to be discharged. If does not happen automatically. Also, look closely at the time rules in the Rules of Criminal Procedure. If the sixtieth day falls on a weekend, the actual deadline for indictment will be on the Monday following the weekend.

It is important to note that this is not a statute of limitations. Just because a defendant is discharged under the sixty-day rule does not mean the case is dismissed or cannot be indicted. The defendant is merely discharged from the obligation to post bond. Many times, it can be an extreme inconvenience to the defendant to be discharged from bond on the sixty-day rule. The government may well turn around the next week and indict the defendant, leading to an arrest warrant and a requirement to post a (potentially higher) bond. It is not always prudent to file sixty-day rule motions.

Kentucky Circuit Court Criminal Cases

Kentucky has 57 Circuit Courts and 95 circuit judges. Circuits can cover anywhere from one to four different counties. Many Circuits have multiple judges or divisions. The Circuit Court has jurisdiction over capital offenses (death penalty cases), felony cases, and misdemeanors that are part of the same indictment as a felony offense. Circuit Court judges are elected and serve eight year terms.

Felony cases in Circuit Court are prosecuted by the Commonwealth’s Attorney’s Office for that Judicial District. Commonwealth’s Attorneys are elected and serve six year terms.

Felony Cases in Circuit Court

The Circuit Court will handle felony cases at the trial level from the time after indictment until sentencing. Not all felony cases go through the District Court—the government can chose to “directly indict” a case by presenting it to the grand jury, rather than charge the felony and go through the District Court process. This procedure is common in some counties and rare in others. Ultimately, it is up to the discretion of the elected County and Commonwealth’s attorney to make this determination.

Arraignment in Circuit Court

Once indicted a case will be arraigned. This is an opportunity to enter a plea—almost always “not guilty”; though in some cases a “rapid disposition” or “rocket docket” agreement will be entered and the defendant will plead guilty at arraignment. Practitioners would do well to be careful of these types of pleas. They are not necessarily a bad idea, but waiving the right to receive discovery (the evidence against the defendant) could, in some cases, be perceived as ineffective assistance of counsel. Ultimately, the decision whether to accept a rapid disposition or “rocket docket” should be decided on a case-by-case basis. Many times these are great offers and worth waiving the right to discovery, but it does not follow that one should say “yes” to the first opportunity to plead guilty. Especially when one doesn’t know the strength of the government’s case.

In some jurisdictions, a trial date will be set at arraignment in Circuit Court. This is the exception to the rule, however. Most courts set either a Status Hearing or Pretrial Conference date for counsel to return on and for the government to have provided discovery.

Status Hearing/Pretrial Conference in Circuit Court

Courts sometimes use Status Hearing or Pretrial conference interchangeably. In most courts, it is a date for the Court to inquire about the status of the case—will the defendant enter a plea, are there evidentiary issues, is the case ready to be set for trial? In some jurisdictions, a pretrial conference is different than a status hearing. It is an opportunity for the lawyers to meet to discuss the case and for the government to make an offer for a guilty plea. These jurisdictions may also hold status hearings to meet with the judge.

Trial in Circuit Court

Trial in Circuit Court is similar to District Court, though the stakes are obviously much higher. One of the major differences is the fact that a Circuit jury is typically made up of twelve jurors rather than six in District Court. Trial is what people think of when they think of Court—opening statements, questioning witnesses, viewing evidence, and closing argument. Much can be said on this subject and will be focused on in another article.

Guilty Pleas in Circuit Court

A defendant can enter a plea agreement or plea bargain in Kentucky Circuit Court. If they choose to do so, there is paperwork required to be filled out. Almost every judicial Circuit has a different form they use, so your criminal defense attorney should be mindful to check with the local Circuit Court Clerk to ensure that they use the correct form. At the guilty plea the defendant will be asked many questions, some biographical, some about the crime they are pleading guilty to. A criminal defense attorney should have their client well prepared to discuss their crime in the best light possible, while being honest and accepting responsibility.

Alford Pleas in Circuit Court

Sometimes a defendant will not want to admit guilt, but will still want to take advantage of a plea bargain rather than risk more severe punishment at trial. In this case, the defendant can enter an “Alford plea”. In an Alford plea a defendant does not admit guilt, but does stipulate that there is sufficient evidence that they could be found guilty. By law it is treated the same way as a guilty plea.

Sentencing in Kentucky Circuit Court

Sentencing is the opportunity for the judge to set the sentence for the defendant. Options range from diversion, conditional discharge, probation, county jail time, home incarceration time, prison time, or a combination of the options. Prior to sentencing, a defendant will complete a presentencing interview “PSI” with the Department of Probation and Parole. This is the packet of information that Probation and Parole provides to the judge for the judge to make a decision on the defendant’s sentence. It includes biographical information, substance abuse history, prior criminal record, and many other things. Your criminal defense attorney should assist you in preparing for the interview with Probation and Parole to make sure you include all relevant information for the judge.

A criminal defense lawyer would be wise to argue on behalf of their client in a “motion for probation” or “alternative sentencing plan”, filed prior to sentencing. A savvy criminal defense lawyer will know the judges preferences and will be able to craft a plan that hopefully satisfies the judge as sufficient punishment for the crime.

At the actual sentencing hearing, the criminal defense lawyer and the defendant will have the opportunity to address the court. This opportunity should be taken. A talented criminal defense lawyer can advocate powerfully on behalf of their client. A good sentencing argument can make the difference between probation and prison. It is also a good idea in many cases for the defendant to take responsibility for their crime and show genuine remorse when addressing the Court. Your lawyer can help prepare you for the difficult act of speaking on your own behalf under the high-pressure of the court room. The defendant should be honest and truthful. In the best cases, true remorse can make a difference in the outcome of the case as well.

Need Answers Or Legal Help?

This post is meant to be a short introduction to the Kentucky Criminal Trial Process. It is not in-depth, but offers many of the high points. Should you have any further questions, our attorneys are available to help. 

Furthermore, if you are a defendant in a criminal case, misdemeanor or felony, you need a Kentucky criminal defense attorney that knows the process inside out. Our team of criminal defense attorneys at Baldani Law Group have extensive experience in and out of the courtroom to help secure you the result you need in your case. Please call (859) 259-0727 or contact us online for a free consultation today.

Filed Under: Criminal Defense

Sours: https://baldanilaw.com/kentucky-criminal-courts-guide/

The Steps Of A Criminal Prosecution In Kentucky

Understanding the process of a criminal prosecution is vital to defending a criminal charge and asserting your rights as a defendant.  The following is a step by step explanation of what happens from the time a crime is alleged all the way to the trial.

1.  How a Criminal Prosecution Begins.

There are three primary ways in which a prosecution is initiated; (1) a police officer files a complaint, (2) a private citizen files a complaint, or (3) an arrest is made without a warrant or summons.  The most common method is for a police officer to file the complaint.  The officer will usually submit a sworn statement called an affidavit with the complaint explaining why the officer believes a crime was committed by the defendant.  Generally if an arrest is made before a complaint is filed it is because the officer witnessed the alleged crime taking place, for example with a DUI or drug possession charge.

2.  An Arrest Warrant is Issued.

If there is probable cause to believe a crime has been committed by the defendant then a warrant will be issued.  The warrant can either be served on the defendant or the defendant can be arrested.

3.  The Defendant is Formally Charged.

Once the defendant has been arrested they will be formally charged with a crime. They can be charged with either a felony or a misdemeanor criminal charge.

4.  The Defendant Makes an Initial Appearance in Court.

The initial appearance is the first time the defendant comes before a Judge and will receive information about the nature of the charges, the Judge will read the complaint, provide information about future proceedings, and bail will be set.  At this stage a defendant who cannot afford counsel will have a lawyer appointed to them.  Defendants who hire private counsel can have their lawyers get involved earlier in the process.

5.  The Defendant has a Preliminary Hearing.

At this hearing the Prosecution has to prove to the Judge that it is more probable than not that the defendant committed the crime charged.  There are three possible outcomes to the preliminary hearing: (1) the charges are dropped because the Prosecutor cannot show probable cause, (2) the Judge finds that probable cause does exist and turns the case over to the Grand Jury to seek an indictment, or (3) the defendant agrees to proceed without requiring an indictment from the Grand Jury.  It is very important to remember that if the charges are dropped at this point in the process the Prosecutor has the right bring the charges again down the road because Jeopardy has not yet attached.

The amount of time the Court has to schedule a Preliminary Hearing depends upon whether the defendant has been charged in State or Federal Court and whether or not the defendant is in jail while awaiting the hearing.  If the defendant is charged in a State Court the Preliminary Hearing must be held within 10 days of the Initial Appearance if the defendant is in jail or 20 days if the defendant is not incarcerated.  In Federal Court the Preliminary Hearing must occur within 14 days of the Initial Appearance if the defendant is in jail and 21 days if they are not.

6.  The Grand Jury Issues an Indictment.

The Grand Jury process is very secretive.  The defendant and their counsel do not have the right to attend.  The Judge, the Prosecutor, the Grand Jury and witnesses are the only people allowed to be present.  If the Prosecutor can present enough evidence to show probable cause then the Grand Jury can issue an indictment.  Like the Preliminary Hearing phase, the Prosecutor can try multiple times to get a Grand Jury to issue an indictment.

7.  The Arraignment Process.

During the Arraignment the formal charges are read, the defendant makes a formal plea, and bail may also be set here.

8.  Trial Preparation.

At this point the Prosecution and the Defense will go through a formal process of trying to find evidence to establish the facts of the case.  Often both sides will make motions to have the Court rule that certain pieces of evidence are not allowed to be used during the trial.

9.  Conclusion of the Case.

Many cases do not make it this far.  Often plea agreements are reached and the necessity of a trial is avoided.  Other times the case will be dismissed because the Prosecution lacks the evidence necessary to move forward.  Cases that are not dismissed or that fail to reach a plea agreement move to trial.

Understanding the steps in a criminal prosecution is important to insuring the best outcome in a criminal case.  During many of these steps it is valuable to have the advice and help of a competent attorney as they can help defendants navigate the steps of the process and avoid common pitfalls.  If you have charged with committing a crime and need advice, please call to speak with an attorney at Hurst & Hurst Law at (859) 209-2101.

Sours: https://www.hurstandhurstlaw.com/criminal-prosecution-in-ky/
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Kentucky Criminal Procedure and Charging Process

Arrest and Charging

Either a police officer or a complaining witness reports the crime to the County Attorney (the prosecutor). The County Attorney then reviews available information, considers the evidence, and decides what charges to file. Alternatively, the County Attorney may believe that there is not enough evidence to support a conviction or that some evidence may be excluded at trial. In these cases, the prosecutors may decline to file charges or request that the police investigate further. If charges are filed, a written complaint is issued and a court appearance is scheduled.

Bond

In lieu of commercial bail bonding, which is outlawed in Kentucky, the state utilizes pretrial services programs to assist the Court in setting bond. With the goal of setting the least restrictive release terms, the pretrial services officer interviews defendants within 12 hours of arrest. The officer gathers extensive information about the accused and the crime charged. He or she makes a bond recommendation to the judge based on such factors as the nature of the crime, whether the defendant poses a danger to public safety, and how likely it is that the defendant will appear in court.

Arraignment

At arraignment, the accused appears in court and the Judge reads the charges filed. The defendant enters a plea of “guilty” or “not guilty.” At this point, a public defender is appointed if the accused cannot afford an attorney. Also, the pretrial services officer’s recommendation is presented and bond is set.

Pleas and Negotiations

At any point after arraignment, the defendant may choose to plead guilty. Often, the County Attorney reviews the case and decides to offer a plea “deal.” This offer is an agreement between the State and the defendant that he or she will plead guilty under certain specified terms. Plea agreements provide a means to ensure that the time, expense, and uncertain outcome of a trial can be avoided. However, judges have discretion to accept or reject the agreement.

Diversion (Fayette County)

While the Commonwealth Attorney is ultimately responsible for prosecuting all felonies indicted by the Grand Jury, the County Attorney’s Office processes all criminal offenses occurring in Fayette County. Thus, their caseload includes juvenile offenses and traffic violations in addition to other crimes. In line with their dual goals of punishing and deterring crime, the County Attorney has established a diversion program for first-time offenders. If an offender qualifies for and completes the program, the conviction is expunged from his/her record. Successful completion involves entering a guilty plea, making restitution if applicable, performing community service, and possibly receiving counseling. While the demands of the program are stringent, the possibility of avoiding a criminal record may be an attractive option to eligible offenders. At present, qualifying offenses include:

  • Minor in Possession of Alcohol or Marijuana
  • Alcohol Intoxication
  • Disorderly Conduct (non-violent)
  • Theft by Deception (misdemeanor)
  • Ticket Scalping (two ticket limit)

Our attorneys can help you determine your eligibility for the program, explain the details, and contact the prosecutor to facilitate admittance. Furthermore, we will advise you on the benefits and pitfalls of diversion versus a plea or trial considering the time commitment involved, any applicable fees, and the likelihood of a dismissal or not guilty verdict in your case. Keep in mind that diversion programs are created and administered by individual County Attorney’s Offices. Consequently, if you have been charged with an offense outside of Fayette County, diversion may or may not be an available option. Contact our firm to find out whether your case from Fayette or surrounding counties may qualify for criminal diversion.

Pretrial Hearing

If the County Attorney has not made a plea offer already, he or she may do so at the Pretrial Hearing. If the defendant refuses the deal or if the offer is not made, the case is formally set for trial on a specific date. Also, attorneys on both sides may turn in witness lists or narrow disputed issues to save time at trial.

Trial

Each side presents its case before a judge or jury in an adversarial proceeding. The trial includes jury selection, opening and closing statements by both parties, and the opportunity for both parties to present evidence and cross-examine witnesses presented by the opponent. The prosecutor’s goal is to prove every element of the crime charged beyond a reasonable doubt. The defense attorney’s goal is to disprove the elements, offer evidence creating reasonable doubt as to whether the defendant committed the crime charged, or merely demonstrate that the prosecution, who has the burden of proof, failed to prove the case.

Deliberations and Verdict

In a jury trial, the Judge instructs the jury on the rules of law that apply to the case. The jury then considers the evidence presented and applies the facts to the law to determine whether the state’s burden has been met. When the jury arrives at a unanimous decision, they return to the court and the verdict is announced.

Sentencing

When a defendant is adjudicated guilty, whether at trial or by a guilty plea, the Judge imposes a sentence that falls within the boundaries provided by Kentucky law. Within those parameters, however, the Judge has discretion to set punishment weighing all the facts of the case. To aid his or her decision, the Judge orders a thorough pre-sentence investigation report be conducted by a probation officer in felony cases. The report includes the defendant’s criminal history, mental conditions, family background, educational history, employment history, psychological evaluations, and more. See KRS 532.050. At the sentencing hearing, the defense attorney, prosecutor, and possibly the defendant and/or victim(s) will argue for a proper sentence. The Judge considers these arguments and the pre-sentence investigation and arrives at a decision. In a misdemeanor case, the Judge will typically impose a sentence immediately upon the defendant’s conviction.

Kentucky Penalties

Crimes are classified as violations, misdemeanors, or felonies depending on the punishment imposed. Penalties include fines only for violations, imprisonment of no longer than one year for misdemeanors, and imprisonment of at least one year for felonies. KRS 500.080.

Misdemeanors are further classified as follows:

Category

Maximum Sentence Imposed

Maximum Fine Imposed

Class A misdemeanor

12 months

$500

Class B misdemeanor

90 days

$250

See KRS 532.020 and KRS 532.090.

Fines may be levied either in addition to imprisonment, or as an alternative KRS 534.040(1).

 

Felonies are further classified as follows:

Category

Maximum Sentence Imposed

Class A felony

20 to 50 years

Class B felony

10 to 20 years

Class C felony

5 to 10 years

Class D felony

1 to 5 years

See KRS 532.020(1) and KRS 532.060(2).

These terms of imprisonment are subject to judicial discretion. In addition, offenders may be sentenced to pay a fine ranging from $1,000 to $10,000 depending on several factors including the defendant’s ability to pay and the amount gained by the commission of the crime. KRS 534.030(2).

Sours: https://lexingtonkylawfirm.com/criminal-law/criminal-defense/criminal-procedure-charging-process/

      Louisville Criminal Defense Attorney

Informed of the offense charged in the complaint, information, indictment, or other charging document, and asked to enter a plea of guilty, not guilty, or as otherwise permitted by law. Depending on the jurisdiction, arraignment may also be the proceeding at which the court determines whether to set bail for the defendant or release the defendant on his or her own recognizance.  

Arraignment must occur within a reasonable time after arrest. An unreasonable delay violates the defendant’s federal constitutional Sixth Amendment right to a speedy trial. If a criminal complaint, information or indictment is issued and the prosecutor’s office or the court does not schedule the case for arraignment until months or years later, the defendant’s attorney can ask that the case be dismissed because of the delay. The judge must review the circumstances of the delay and determine whether the delay was unreasonable.

Procedure

1. Informing the Defendant of Charges

2. Pleading at the arraignment - Defendants normally enter a plea of not guilty through their attorneys. Arraignment in Circuit Court in Kentucky means that the case was presented to the Grand Jury or was taken through "Rocket Docket." Rocket Docket is just a term used to mean that the Defendant had stipulated to a charge and therefore waived his right to have their case presented to the Grand Jury. 

3. Right to a Lawyer at the Arraignment. Arraignment is considered a critical part of your due process and you have a right to a lawyer at this stage. The lawyer will be able to help explain the charges and the consequences of any pleas that the defendant may enter. The defendant can also waive his right to a lawyer if he chooses to do so.

If the defendant can't afford a lawyer, the court will appoint one for him if requested. However, if the charged crime is petty and can't lead to prison, the defendant doesn't have the right to an appointed lawyer.

As a practical note you really want an attorney at this stage. I've seen people go up without an attorney and when asked if they wish to plead guilty responded, "I guess I shoud since I did it." As simple as "not guilty" is, you should have an attorney.  

 

Presence of Defendant at the Arraignment

The defendant is generally required to be present at an arraignment. However, a court may allow a defendant to waive his right to be present under certain circumstances. Any waiver of presence is permitted only with the consent of the court.

The Amendments impacted here would be the 5th, 6th and 8th Amendments.  

You don't want to walk up and plead guilty because you don't know the law. Your mental state at the time of the events is critical. 

Some people walk into their 5th Amendment trap as noted above. "Well, I did it, so why not."  

Your 6th Amendment - Arraignment must occur within a reasonable time after arrest. An unreasonable delay violates the defendant’s federal constitutional Sixth Amendment right to a speedy trial. 

Your 8th Amendment - “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” What does it mean for a punishment to be “cruel and unusual”? 

There are solid reasons why the law exists in its current state and why it is proper. When people created the British Colony in America and decided to have a revolution they were tired of the Old Country. Especitally, the criminal justice system. There was no 5th Amendment Right and so if they got you to say "you did it," then you "did it." No Double Jeopardy so if you were found "not guilty" at a jury trial, they may decide to try the case again!

Sours: https://www.louisville-criminal-defense-lawyer.com/proc-post/arraignment

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