Progression of a Criminal Case

Progression of a Criminal Case

Once a person is arrested, a number of procedural events have to take place before the case is resolved. The following is a brief description of the progress of a felony criminal case in Kentucky Courts:

Arrest: Upon a person’s arrest, he/she must be allowed to attempt to contact an attorney “as soon as practicable,” according to the rules of criminal procedure in Kentucky.

Taken before a judge: After being arrested, a person must be taken before a judge “without unnecessary delay.” Realistically, this usually means sometime the next morning when most courts conduct what is commonly called “jail arraignments.” Normally, in Kentucky before you go before a judge, you will meet with someone from Pretrial Services who will conduct an interview with you to get some basic information about your ties to the community, work history, family, and criminal background in order to make a bond recommendation to the court.

Right to counsel: Any person facing charges that could result in a jail sentence is entitled to be represented by counsel at all stages of the proceeding. Kentucky law states that if a person is statutorily indigent, he/she is entitled to the services of the Department of Public Advocacy. If you are not determined by the court to be indigent, you will not be entitled to a public defender and will have to hire a private attorney.

Bond/bail: If a person is still in jail 24 hours after conditions of release (initial or statutory bail has been set) the court that imposed the conditions of release shall review them if that person makes written application for reconsideration (i.e. your attorney files a Motion to Reduce Bond), but the court may act on its own without written request under the rules of criminal procedure (but usually they do not). Pretrial service officers shall notify the judge of all persons so detained after 24 hours.

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. Officially, the preliminary hearing is for the court to determine if there is sufficient probable cause to send the case to the Grand Jury. Realistically, it is rare that a judge does not find sufficient probable cause because normally the only evidence presented it the testimony of the arresting officer. Nevertheless, the preliminary hearing is an excellent opportunity for the defense to get a peak at the strength of the prosecution’s case and start to attack it. For that reason, a preliminary hearing should not be waived lightly unless you get something in return from the Commonwealth Attorney’s office.

Grand Jury/Indictment: After the preliminary hearing, the case will be forwarded to the grand jury. The grand jury will decide whether to bring an indictment against the person (i.e. officially charge the person with a felony offense). If the grand jury determines that there is not sufficient probable cause to indict, they will issue a “no-true bill,” i.e. refuse to allow the case to proceed. Do not get your hopes up that a no-true bill will be issued, most grand juries simply follow the recommendation of the Commonwealth Attorney. In any event, if no indictment is issued within sixty (60) days of the person’s arrest, he/she must be released from custody. This does not mean he/she will not still be indicted, it just means he/she is released pending the outcome of the case.

Arraignment: Arraignment of felony cases takes place in Circuit Court (up to this point, all other court proceedings have taken place in District Court). While this is a constitutionally required hearing, normally it is a very short proceeding in which the person receives a copy of the indictment (the document that lists the official charges against the person) and enters an official “not guilty” plea.

Discovery: During the discovery process, the defense gets to see the evidence the Commonwealth has against the defendant. After reviewing the evidence, defense counsel may file one or more motions to attack the evidence’s legitimacy or admissibility.

Bill of Particulars and Plea Offer: After discovery has been produced by the prosecution, the Commonwealth Attorney will also issue a Bill of Particulars, which is a brief statement of what the Commonwealth believes to be the facts of the case and the witnesses it will call, and make an initial plea offer. Defense counsel will attempt to negotiate the plea offer down with the Commonwealth Attorney. If an acceptable plea agreement can be reached it will be entered at the pretrial conference.

Pretrial Conference: At the pretrial conference, the judge will want to know if the defendant has reached a plea agreement or if he/she wants to schedule the case for trial.

Plea agreement: If the person enters a plea agreement, the court will schedule the case for a sentencing hearing. In the interim, the court will almost always order a presentence investigation report be completed by the Probation and Parole Office.

Trial: All citizens have a right to a speedy and public trial where they can confront and cross-examine witnesses, and produce evidence in their favor including the attendance of witnesses. The intricacies of a criminal trial go beyond the scope of this limited outline, suffice it to say that while every citizen accused of a crime has a right to a trial, it is an extremely serious matter to put one’s fate in the hands of a jury and a decision that should not be made lightly.

Sentencing: At sentencing the court will determine whether to accept the Commonwealth’s recommendation on a plea agreement or, if the matter went to trial, the recommendation of the jury. If the judge decides not to accept the recommendation of the Commonwealth on a plea agreement, the judge must inform the defendant of that decision and give him/her an opportunity to withdraw his/her guilty plea and proceed to trial.

If a jury has made a sentencing recommendation, a judge will rarely go against a jury. Nevertheless, as long as a defendant is not prohibited from being probated, the court must at least consider probating the defendant. Depending upon the crime charged and the facts, your attorney should be able to give you an idea of the likelihood of the judge actually granting probation in your particular case.