The Legal System
The following is a broad outline of the criminal justice system in Jefferson County and how the process unfolds from the time a crime is committed until a defendant is released after serving a sentence. This outline is not meant to be exhaustive or all encompassing. Other states and counties may proceed quite differently. If you are in another jurisdiction, please consult your local prosecutor's office for questions concerning the justice system in your jurisdiction.
- Crime Committed
- Police Notified
- Police Investigate
- Investigation may include interviewing victim, witnesses, suspects; collecting physical evidence; visiting, viewing, photographing, measuring crime scene; identifying suspects; through line-ups ... etc.
- Bifurcated Court System
- In Jefferson County, our court system is divided into district court and circuit court. District court is where all misdemeanor offenses are handled and where the preliminary hearing for felony charges are held. Circuit court is exclusively for felony charges and any misdemeanors associated with the felony before the court. Felony charges may originate in district court before coming to circuit court through a waiver or referral of the charges to the Jefferson County Grand Jury. Felony charges can also be brought to circuit court by two other methods: direct submission and by information.
- Police Make an Arrest (or Request a Warrant)
- When a crime is committed in a police officer's presence --- or he has probable cause to believe that certain misdemeanors or any felony was committed that he did not see happen --- an officer may arrest a suspect on the spot without an arrest warrant. The officer will later submit a charging/warrant request to the Jefferson District Court and an Assistant Jefferson County Attorney will review the charges to make additions or corrections.
- Warrant/Charging Request Reviewed by Prosecuting Attorney (District Court - Misdemeanor Level)
- Most cases begin with a warrant request. This is generally the first time that the prosecuting attorney is involved in a case, unless he or she reviewed a search warrant or visited the crime scene. At this stage, the prosecutor determines whether a person should be charged with a crime and, if so, what the crime should be. The prosecuting attorney must thoroughly review all reports and records concerning the case, including witness statements. The prosecutor also reviews the suspect's prior criminal or traffic record. Occasionally, the reviewing prosecutor sends the case back to the police to conduct additional investigation.
- Warrant Issued (District Court Level)
- The prosecutor can issue a charge if he or she reasonably believes that probable cause exists that the suspect committed the offense. But most prosecuting attorneys apply a higher standard --- whether they reasonably believe that they can prove the charge beyond a reasonable doubt at trial with the information known at that time.
- Suspect Arrested (if not already in custody)
- The delay between the crime date and the defendant's arrest on an authorized charge can take any length of time (if the defendant's whereabouts are unknown, or if they have left the Commonwealth of Kentucky). If warrant is issued, the issuing agency will log the information in N.C.I.C. (National Crime Information Computer) and that information will be available to virtually every law enforcement agency in the United States. Information is also shared with Interpol, the international law enforcement agency.
- District Court Arraignment
- This is the first court appearance for any misdemeanor or felony. Once arrested and charged with a felony, the suspect appears in district court for arraignment. At arraignment, the defendant is told what the charge(s) is (are) and the maximum penalty if convicted, and is advised of the constitutional rights to a jury or bench trial, appointed attorney and presumption of innocence. The charging document is called a complaint. The conditions and amount of bond are determined. In some cases --- generally based on the nature of the charge --- the Judge imposes conditions on the bond, such as "no contact" with the victim. Bond is set in almost every case, but it is up to the defendant's own resources to post the bail money, which allows him or her to be released.
All further pre-trial procedures are determined by whether the defendant is charged with a felony or misdemeanor:
At a misdemeanor arraignment, the defendant will be given a chance to enter a plea to the charge: plead guilty, plead not guilty, or stand mute (i.e., remain silent, which is treated by the court as if the defendant pled not guilty). If a guilty plea is entered, the Judge may sentence the defendant immediately or may reschedule the case for a sentencing date, which will give the probation department time to prepare a pre-sentence report, including background information about the defendant and the crime and a sentencing recommendation. If the defendant stands mute or pleads not guilty, the case will be scheduled for a pre-trial conference.
In traffic and non-traffic misdemeanor cases, this is the defendant's second court appearance. It is a scheduled meeting between an Assistant County Attorney and the defendant (or a defense attorney) to determine whether the case will go to trial or be resolved with a plea of guilty. These meetings focus on resolving the case short of trial. The judge and witnesses are not involved in misdemeanor pre-trial conferences. If a plea bargain is going to be offered by the prosecutor, it is done at this time.
Many other events can occur prior to trial. Depending on the nature of the case, there may be pre-trial hearings on constitutional issues (confessions, searches, identification, etc.). The issues are presented to the court through written "motions" (e.g., motion to suppress evidence, etc.). The judge must determine whether evidence will be admitted or suppressed at the defendant's trial, whether there is some legal reason why the defendant should not be tried, or decide other ground rules for trial.
A felony charge can be brought to circuit court in three ways in Jefferson County: waiver to the Grand Jury from district court as described below; Direct submission to the Grand Jury by the Commonwealth's Attorney's Office; or via an information.
District court track for felony prosecution
At a felony arraignment in district court, the defendant does not plead guilty or not guilty. The defendant has a right to a probable cause hearing within 10 days of the arraignment if the defendant is in custody, or within 20 days if the defendant is out of custody. If the defendant requests a court-appointed attorney, the court will review that request at the time of the arraignment.
Felony Probable Cause Hearing
This is a contested hearing before a district court judge. The prosecutor presents witnesses to convince the judge that there is probable cause to believe that a crime was committed and that the defendant committed the crime. Because the burden of proof is much less than at a trial, the prosecutor generally does not call all potential witnesses to testify at the "p.c. hearing"; generally, the victim and some eye witnesses or the police witnesses (if there is no victim) testify. The defendant has an attorney; can cross examine the witnesses; and can present his own evidence (including witnesses). If probable cause is established, the defendant's charges are "referred" to the grand jury. If the judge decides that there is not probable cause that the defendant committed the crime, the charge can be dismissed or reduced to a misdemeanor for trial in district court. Defendants can decide to waive their rights to a probable cause hearing, wherein the charges are referred to the grand jury without any testimony or hearing. Most felonies arrive in circuit court after such a "waiver".
After the case is referred to the grand jury, the case comes to the Commonwealth's Attorney's Office where it is assigned to an Assistant Commonwealth's Attorney. The assigned attorney reviews the case file and the defendant's prior criminal record, interviews witnesses, and determines if the charges are appropriate and should be indicted. At this point the prosecutor can add new charges or add persistent felony offender charges to the final list of recommendations that will go before the grand jury. The prosecutor then submits the charges to the grand jury and subpoenas any relevant prosecution witnesses.
Grand Jury Proceeding
The Grand Jury is composed of twelve citizens (and 6 alternates) from Jefferson County who serve for one month. The hearing before the grand jury is confidential and not open to the public. At the grand jury proceeding, the prosecutor must presents testimony through police or prosecuting witnesses. The burden of proof is identical to that of a probable cause hearing: whether or not there is probable cause to believe that a crime was committed and that the defendant committed the offense. If the grand jury believes that there was probable cause, an indictment is issued and presented twice daily to the grand jury judge. If the grand jurors do not believe there was sufficient probable cause, they can either remand the case to district court to be dealt with as a misdemeanor or return a "no true bill" on those counts that fail for lack of probable cause. A "no true bill" is effectively a dismissal of the charges; however, the Commonwealth could present them again at a later time if new evidence becomes available. Defendants have no right to testify before a grand jury, but may request of the grand jury the opportunity to testify. Any testimony given by the defendant to the grand jury may be used against him in later court appearances.
Circuit Court Arraignment
After an indictment is handed down by the grand jury, the defendant is arraigned (given formal notice of the charges against him or her) in a randomly assigned division of circuit court. The charging document is called an indictment. He or she is again advised of his or her constitutional rights, and enters a plea to the charge (guilty, not guilty or stand mute).
Bond Reduction Hearing
A hearing held before the presiding circuit court judge by motion of the defendant to argue for a decrease in the amount of bond required for release of the defendant pending trial.
As with district court misdemeanors, the circuit court schedules a meeting between an Assistant Prosecuting Attorney and the defendant's attorney to determine whether the case will go to trial or be resolved with a plea. There may be several pre-trial conferences held to accommodate all discovery requests and disputes.
A hearing requested by the defendant to determine if the evidence or statements produced by the prosecution are constitutionally valid (for example, was evidence collected illegally? Were statements of the defendants received as a product of threats or coercion?)
As with district court misdemeanors, the circuit court judge is called upon to resolve various pre-trial issues, some of which determine whether the case will continue to a trial, be resolved with a plea, or be dismissed.
Direct Submission to the Grand Jury by the Office of the Commonwealth's Attorney
The Commonwealth Attorney's Office may submit cases to the grand jury for consideration without proceeding through district court. This proceeding is often used when an ongoing investigation is taking place. The Assistant Commonwealth's Attorney can then request, with good cause, that a bench warrant be issued for the arrest of the defendant. Once an indictment is returned by the grand jury, a letter is issued by the grand jury notifying the defendant of the time, date, and location of their arraignment in circuit court--generally the following Monday
Proceeding by Information
When a felony charge is originally brought through district court, a defendant may elect to proceed to circuit court via an Information. With an Information, the defendant waives his rights to a probable cause hearing in district court, agrees to waive the case to the grand jury and agrees to waive the grand jury proceeding. In essence, this is a expedited method by which a defendant can get the case from district court to circuit court for a speedy resolution. Virtually every case that proceeds by information does so for the purposes of entering into a speedy plea agreement at the circuit court level. In some cases where the guilt of the defendant is certain to be proved, this form of proceeding can be very beneficial to the defendant and the justice system as it greatly reduces the amount of time that it takes to proceed through the system (including local jail facilities).
Trial (Jury or Bench)
A trial is a fact-finding, adversarial proceeding in which the prosecutor must present evidence to prove the defendant's guilt beyond a reasonable doubt. The defendant is not required to prove his or her innocence or to present any evidence, but has the right to challenge the accuracy of the prosecutor's evidence and to cross-examine witnesses.
Both the defendant and the prosecutor (representing the people of the Commonwealth of Kentucky) have the right to a trial by a jury. Sometimes, both sides agree to let a judge hear the evidence and decide the case without a jury; this is called a "bench trial". In a jury trial, the jury is the "trier of fact"; in a bench trial, the judge is the "trier of fact." After the evidence is presented, the judge or a jury will determine whether the evidence proved that the defendant committed the crime.
Here is a general outline of the steps in a jury trial:
If the defendant is found guilty, the Sentencing Phase begins next.
- residents of Jefferson County are randomly selected from a list of licensed drivers and registered voters, and are summoned to the court as potential jurors;
- a blind draw selects 30 or more people from that group for questioning relevant to the specific case;
- the judge, prosecutor and defense attorney question the jurors about their backgrounds and beliefs (see voir dire);
- the attorneys are permitted a limited number of "peremptory" challenges to various jurors (or an unlimited number of challenges for "good cause");
- after twelve (for felonies) or six (for misdemeanors) acceptable jurors remain, the judge administers an oath to the jury and reads basic instructions about the trial process. The court may include alternate jurors if the trial is expected to be of some substantial duration. This begins the "Guilt Phase" of a trial;
- the prosecutor gives an opening statement to outline his case and evidence to the jury;
- the defense may give a similar opening statement, or wait until later in the trial;
- the prosecutor calls his witnesses and the defense may cross examine the witnesses;
- the Commonwealth closes its proofs;
- the defense may call witnesses, if it wants, and the prosecutor may cross-examine them;
- the defense rests;
- the prosecutor may present "rebuttal" witnesses or evidence to challenge evidence presented by the defendant during his proofs;
- the prosecutor rests;
- the judge gives the jury detailed legal instructions about the charged crimes and the deliberation process;
- the defense attorney presents a closing argument to the jury;
- the prosecutor presents a closing argument to the jury;
- the jury deliberates and returns a verdict. This ends the "Guilt Phase" of the trial.
- the court will inform the jury of the basic instructions about the sentencing phase of the trial.
- the prosecutor gives an opening statement to outline the proof he intends to enter about the defendant's prior criminal background and information about probation and parole.
- the defense attorney gives an opening statement.
- the prosecutor calls witnesses to put evidence before the jury;
- the defense attorney may cross-examine these witnesses.
- the defense attorney calls witnesses to put evidence before the jury;
- the prosecuting attorney may cross-examine these witnesses.
- the judge instructs the jury concerning the range of penalties.
- the defense attorney presents a closing argument.the prosecuting attorney presents a closing argument.
- the jury deliberates and returns a verdict, consisting of incarceration, a fine or both.
The court's probation department prepares a report for the judge summarizing the crime, and the defendant's personal and criminal backgrounds. Generally, the victim is contacted for a Victim Impact Statement. The probation officer concludes the report with a recommended sentence.
Sentencing in Kentucky varies with the crime and can be a very confusing part of the criminal process. Most often, sentences are at the judge's discretion. At the time of sentencing, the judge will consider the information in the pre-sentence report before determining the sentence. The parties may correct factual errors in the pre-sentence report and offer additional evidence relevant to the judge's sentencing decision. The judge may consider different alternatives, such as a fine, probation, community service, a sentence to jail or prison, or a combination. The judge must also order the defendant to make restitution to any victims who have suffered financial harm.
Appeals from the district court are heard in the circuit court. Appeals from a circuit court are heard by the Kentucky Court of Appeals. Appeals from Court of Appeals decisions are heard in the Kentucky Supreme Court. There are three kinds of appeals: (1) interlocutory, (2) of right, and (3) by leave.
|| Interlocutory appeal: occurs when a party tries to appeal a judge's decision before the case has come to trial or before a trial is finished.
|| Appeal of right: occurs after a final order has been entered by the trial court (either a sentencing order, or an order dismissing the charge).
|| Appeal by leave of the court: occurs when an appeal of right is not available (e.g., because an available appeal of right was not filed on time). The appellate court has the discretion to reject the appeal or can "grant leave".
If the appellate court grants leave to appeal, the defendant and prosecutor file briefs that summarize the case facts, frame the legal issues to be decided, and present persuasive written arguments (supported by constitutional, statutory or prior case decision authority). Either party can request that the case be scheduled before the appellate court judges for oral argument. The appellate court will eventually issue a written opinion (or several opinions, if the justices disagree). Not all appellate opinions are "published" (i.e., printed in official "reporter" services). The legal analysis and conclusions in published opinions are given greater weight and authority than "unpublished" opinions.