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).