As a criminal defendant in the Commonwealth of Kentucky, you have certain rights. Both the prosecutor and the Defendant are bound to abide by the Rules of Criminal Procedure, as well as other requirements under the Kentucky Revised Statutes. The following is a general outline of the Basic Criminal Process and the various rights and responsibilities imposed by these rules.
1. RIGHT TO CONTACT ATTORNEY
RCr 2.14(1) – Any person taken into custody must be allowed to make communication with an attorney “as soon as practicable”.
2. APPEARANCE BEFORE MAGISTRATE
RCr 3.02- A person who is arrested shall be taken before a judge “without unnecessary delay”. If no judge is available all arrest documents shall be given to the jailer, and he should give them to the Clerk on or before the next business day. RCr 3.02(3)(4).
3. APPOINTMENT OF COUNSEL
KRS 31.110(1)(a) – Any indigent person charged with a felony, misdemeanor, or any offense that could result in his confinement is entitled to be represented by an attorney provided by the Commonwealth. At arraignment – KRS 31.120(1) – the defendant should be examined as to his financial eligibility for appointment of free or partially free counsel. Free counsel appointment may be terminated at any time if the defendant is found to be able to pay for his own attorney. KRS 31.120(1), RCr 3.05(2).
If the defendant is still in jail 24 hours after the conditions of release (initial or statutory bail has been set) the court that imposed the conditions of release shall review if the defendant makes a written application for reconsideration, but the court may act on its own without a written request. RCr 4.38. Pretrial release officers shall notify the judge of all persons so detained after 24 hours.
5. PRELIMINARY HEARING
A preliminary hearing shall be held “within a reasonable time” but no later than ten days following the initial appearance if the defendant is in custody, and twenty days if he is not in custody. A preliminary hearing may be waived by the defendant or avoided by intervening indictment by the Grand Jury. RCr 3.10.
6. BAIL ON INDICTMENT
The Commonwealth’s attorney shall notify the court of the status of bail conditions at the time of the return of the indictment. RCr 5.14(2).
7. AMENDMENT OF INDICTMENT, INFORMATION, CITATION
If the substantial rights of the defendant are not affected, and no additional or separate offense is charged, an indictment, information, or citation, with leave of court, may be amended at any time before the court or jury has rendered a verdict.
8. OBJECTION TO INDICTMENT:
An objection to the form or signing of an indictment may not be made after a plea has been entered to the indictment or information. RCr 6.06.
9. DEFENDANT TO BE RELEASED IF NOT INDICTED WITHIN 60 DAYS
If a defendant has been held for longer than 60 days and not indicted shall be released from custody. RCr 5.22(2). Indictment may be reinstated, however. RCr 8.24(2).
10. BILL OF PARTICULARS:
The court for cause shall direct the filing of a bill of particulars at any time prior to arraignment, or afterward with permission of the court. Bill may be amended at any time as justice requires.
11. EXAMINATION OF MENTAL CONDITION OF DEFENDANT
The court may commit a defendant for a mental examination for up to 30 days. KRS 504.080.
12. POST MENTAL EXAMINATION COMMITMENT OF DEFENDANT
If a defendant is found incompetent to stand trial by the court, but there is a substantial probability he will attain competency in the future, the court may commit him to submit to treatment for sixty days or until he is found to be competent to stand trial. KRS 504.110(1).
13. DEFENSES AND OBJECTIONS:
Any defense or objection that is capable of determination without the trial of the general issue, may be raised prior to trial by motion. Motion raising such defenses shall be made before a plea is entered unless leave of court is obtained. A mental illness defense shall be preceded by a written notice filed at least twenty days before trial. KRS 504.070(1). Commonwealth shall file a list of witnesses it intends to call to contest said defense, no less than ten days before trial. KRS 504.070(4). In sexual offenses, evidence of the victim’s past sexual behavior under KRS 412(2) must be supported by a written motion to offer such evidence not later than fifteen days before the first day of trial without leave of court. The court may grant such leave if the evidence or defense is newly discovered and could not have been discovered with due diligence.
14. SEVERANCE OF OFFENSES OR DEFENDANTS:
If either party will be prejudiced by a joinder of offenses or of defendants in a prosecution, the court shall order separate trials of counts, grant separate trials of defendants, or provide whatever other relief just requires. Motion must be made before the jury is sworn, or, if the trial is before the court, before any evidence is received. RCr 9.16.
Trial of all persons in custody under arrest shall be held as promptly as reasonably possible. RCr 9.02.
16. JURY PANEL CHALLENGE:
Motions challenging the jury panel shall precede the examination of the jurors. RCr 9.34.
17. DISCOVERY OF STATEMENT AND REPORTS OF WITNESSES:
The Commonwealth shall produce all statements of any witness in the form of a document or recording in its possession that relates to the subject matter of the witness’s testimony and which has (1) been signed or initiated by the witness or (2) purports to be a substantially verbatim statement made by the witness, not later than forty-eight hours prior to trial, except for good cause shown. Said statement shall be made available for examination and use by the defendant. RCr 7.26 (1)(2).
18. DISCOVERY AND INSPECTION – Rcr 7.24
Sections (1) and (2) deal with limited duties of discovery of Commonwealth in criminal prosecutions. (3) If a defendant intends to introduce expert testimony relating to mental disease or defect or any other mental condition…he shall at least 20 days prior to trial, or later with court permission, notify the attorney for the Commonwealth in writing of such intention.
19. NOTICE FOR TAKING DEPOSITIONS
In the absence of agreement, the party taking deposition shall give all parties advance notice of the time and place of taking a deposition, and for good cause notice of less than 72 hours may be permitted. Rcr 7.14.
20. TIME FOR SUPPRESSION OF A CONFESSION:
At any time prior to trial objection to introduction of a confession may be made, or at trial if timely objection is made (prior to introduction). RCr 9.78.
21. TIME FOR SUPPRESSION OF A SEARCH
A motion to suppress evidence obtained through a search may be made anytime before trial, or during a trial before introduction of the objectionable evidence. The trial judge should conduct a hearing outside the presence of the jury, and enter his findings into the record. Court ruling shall be conclusive if supported by substantial evidence. RCr 9.78.
22. INCAPACITY TO STAND TRIAL
If there are reasonable grounds to believe that the defendant lacks the capacity to appreciate the nature and consequences of the proceedings against him, or to participate rationally in his defense, all proceedings shall be postponed until the issue of incapacity is determined as provided by KRS 504.100. Rcr 8.06.
23. WITHDRAWAL OF PLEA
The court may permit the pleas of guilty or guilty but mentally ill, to be withdrawn at any time before judgment. Rcr 8.10.
24. POSTPONEMENT OF HEARING OR TRIAL
The court, upon motion and sufficient good cause, may grant a postponement of a hearing or trial. If a material defense witness is unavailable, parties may agree to read the affidavit to the jury, but the prosecution may object. Rcr 9.04.
25. JURY INSTRUCTIONS – Criminal trials and Civil trials.
Criminal trial: It shall be the duty of the court to instruct the jury in writing on the law of the case. Instructions shall be read to the jury prior to the closing arguments. These requirements may NOT be waived except by agreement of the defense and prosecution. RCr 9.54(1) No error if no objection. RCr 9.54 (2).
Civil trials: The court may direct at any time before or during the trial that the parties submit jury instructions. At the close of evidence either party may request the court instruct the jury on any matter appropriate to the issues in the action. The court must give each party the opportunity to object to his instructions prior to reading them to the jury. No party may assign as error the giving or the failure to give an instruction unless he has fairly and adequately presented his position by an offered instruction or by motion, or unless he makes objection before the court instructs the jury, stating specifically the matter to which he objects and the ground or grounds of his objection. Civil Rule 51 (1) (2) (3). “When no objection given to instructions, the party cannot complain of error…” See Div. of Parks v. Haines, 316 SW2d 60 (KY 1958).
26. ADDITIONAL INSTRUCTIONS WHEN JURY HUNG
The court may only give such additional instructions as are permitted by RCr 9.57(1). See Comm. v. Mitchell, 943 SW2d 625 (Ky. l997).
27. MOTION FOR NEW TRIAL
Motion for a new trial shall be served not later than five days after the return of the verdict. RCr 10.06 When the motion is supported by affidavits, the Commonwealth has 10 days after service of the motion, to serve opposing affidavits. Court for good cause, or parties by stipulation, may allow an extension up to 20 days. RCr 10.08 The Court may order a new trial on its own motion not later than 10 days after the return of the verdict. RCr 10.02(2).
28. PRESENTENCE EXAMINATION
In felony convictions, the court may order a presentence psychiatric examination for a period not exceeding 60 days. KRS 532.050. No court shall impose a sentence on conviction for a felony, other than a capital offense, without first ordering a presentence investigation and giving consideration to the written report. Completion of the report may be waived by the defendant until after sentencing if the defendant is in custody and is ineligible for probation or parole. The defendant shall be given a reasonable time after receipt of the report to controvert its factual conclusions. KRS 532.050.
29. SEX OFFENDER TREATMENT EVALUATION
The court shall order an evaluation of the defendant to be conducted by an approved sexual offender treatment program if the defendant has been convicted of a felony sex offense or any other felony in conjunction with a misdemeanor sexual offense. KRS 532.045(3) to (8), KRS 197.440, KRS 532.050 (4).
30. IMPOSITION OF SENTENCE
Sentence shall be imposed without unreasonable delay. The defendant has the right to contest the report. RCr 8.28(1)(4).
31. CLERICAL MISTAKES
Clerical mistakes in judgments may be corrected in court at any time. RCr 10.10.
32. NOTICE OF ENTRY OF JUDGMENT
The clerk shall immediately notify parties involved of the entry of judgments in felony cases, except that such notification is unnecessary in the case of a judgment entered pursuant to a plea of guilty. RCr 12.06.
33. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
A motion for a judgment notwithstanding the verdict shall be made within five days after the return of the verdict. RCr 10.24.
34. MOTION FOR NEW TRIAL ON THE BASIS OF NEWLY DISCOVERED EVIDENCE
A motion for a new trial on the basis of newly discovered evidence shall be made within one year after the entry of judgment or at a later time if the court permits. RCr 10.06.
35. NOTICE OF JUDGMENT ORDERING EXECUTION OF JUDGMENT
The sheriff shall be furnished forthwith with two certified copies of the judgment ordering confinement or execution of the defendant, and he shall serve the defendant and a certified copy of the judgment to the person in charge of the institution of confinement, and the sheriff shall give notice of said return service within 10 days. RCr 11.22.
36. SETTING DATE OF DEATH SENTENCE
The court’s mandate of a death sentence, when confirmed, shall fix the day of execution as the fifth Friday following the date of the mandate of the court. KRS 431.218.
37. MOTION FOR SHOCK PROBATION – Felony offenses
A motion for shock probation may not be made earlier than thirty days nor later than one hundred eighty days after the defendant has been incarcerated following his conviction. KRS 439.265 (1). The court shall rule on the said motion for shock probation within sixty days of the filing date of said motion. KRS 439.265 (2).
38. MOTION FOR SHOCK PROBATION – Misdemeanor offenses
A motion for shock probation may not be made earlier than thirty days after the defendant has been delivered to the keeper of the institution to which he has been sentenced. KRS 439.267(1). The court must rule on the motion within 60 days. KRS 439.267(2)
39. MOTION FOR WORK RELEASE – (Vocational Training Program)
The Commissioner of the Dept. of Corrections may permit an inmate to participate in a vocational training program during the last 90 days of his confinement. KRS 439.640.
40. REVOCATION OF PROBATED SENTENCE
A motion to revoke a probated or conditionally discharged sentence must be brought within 90 days after the grounds of revocation come to the attention of the Dept. of Corrections, and prior to parole or expiration of the original sentence. KRS 533.040.