CRIMINAL JUSTICE SYSTEM

Module 2Kentucky Victim Assistance Academy

Lessons 2.4 – 2.6

1DRAFT KVAA

Explain the trial by jury process Explain the types of witnesses and what

they can testify to during trial Explain the different types of verdicts that

can be determined by a jury or judge Explain the penalty phase purpose and

process Explain the sentencing process

Learning Objectives 2.4:From trial to sentencing

2DRAFT KVAA

Identify the purpose of the pre-sentence investigation, who conducts it and who has access to the information

Identify the purpose of the victim impact statement, the content, who can make it and how it can be presented to the court.

Understand the difference between probation and shock probation and the process to receive both.

Define restitution.

3DRAFT KVAA

Trial by Jury Process Selection of Jurors Prosecutors Opening

Statement Defendant’s Opening

Statement◦ May reserve until later in trial

Presentation of Evidence by the Prosecution

Prosecution Rests Its Case Defense opening

statement if reserved

Defense May Introduce Evidence

Possible Rebuttal by Prosecutor

Preparation of Jury Instructions

Closing Arguments◦ Defense◦ Prosecution

Jury Deliberation Verdict Sentencing Phase

4DRAFT KVAA

Qualifications of Witness:

Competency KRE 601

Oath or Affirmation required KRE 603

Personal knowledge required KRE 602

Permissible Types of Testimony:

Lay witnesses vs. Expert witnesses KRE 701, KRE 702

Hearsay KRE 801-804

Witnesses

5DRAFT KVAA

Requirements:◦ Unanimous (RCr 9.82)

◦ Returned in open court (RCr 9.82)

Types (KRS 504.120, 532.055)

◦ Guilty◦ Not guilty◦ Not guilty by reason of insanity at the time of the

offense◦ Guilty but mentally ill at the time of the offense

Verdict

6DRAFT KVAA

Activity: Mock Trial

7DRAFT KVAA

Sentencing hearing: KRS 532.055

◦ Prosecution presents evidence relevant to sentencing

◦ Defense may introduce mitigation evidence

◦ Jury determines punishment

◦ Jury determines concurrent or consecutive

Penalty Phase

8DRAFT KVAA

Must be ordered by Judge prior to sentencing

Prosecutor and defense attorney must get report

Defense counsel has right to make statements on defendant’s behalf and present mitigating information

Judge must examine and consider report before sentencing

RCr 11.02, KRS 532.050

Pre-Sentence Investigation

9DRAFT KVAA

Victim’s Right to VIS Statement goes to

officer responsible for preparing PSI report

Included in PSI report Considered by judge

prior to sentencing/release

Some Judges allow oral victim impact statements

KRS 421.520

May contain but not limited to:

Nature and extent of harm

Need for restitution Whether victim has

applied for compensation for financial loss

Recommendation for an appropriate sentence

Victim Impact Statement

10DRAFT KVAA

Sentence must be within range provided by law KRS 532.055

Judge may reduce sentence recommended by Jury KRS 532.070

Judge must consider probation, probation with an alternative sentencing plan or conditional discharge unless it is prohibited KRS 532.010, 533.020, RCr 11.02

Judge must consider PSI and VIS

Imposition of Sentence

11DRAFT KVAA

By Judge whether guilty or not guilty

If guilty includes◦ Plea◦ Verdict/findings◦ Whether entitled to bail/amount◦ Day of execution of a death sentence◦ Concurrent/consecutive sentences

RCr 11.04

Entry of Judgment

12DRAFT KVAA

Imposed by judge at sentencing. All must be considered for unless prohibited by

other laws. Restitution shall be ordered if victim suffered

monetary damage Restitution has priority over restitution to

government agencies Shock probation KRS 439.265, 439.267

◦ Motion must be made within 30 to 180 days after incarceration

◦ Violent offenders and sex offenders not eligibleKRS 533.010 et. seq., 439.265, 439.267

Probation

13DRAFT KVAA

Shall be ordered Not subject to suspension or non-imposition If pre-trial diversion, probation, shock

probation, or conditional discharge is granted, restitution shall be a part of the sentence/agreement

If incarcerate and paroled, restitution shall be a condition of the parole

KRS 532.032

Restitution

14DRAFT KVAA

Questions?

15DRAFT KVAA

Identify who can appeal the verdict of the court

Explain the appellate court process Identify other possible post conviction

proceedings

Learning Objectives 2.5: Appeals and Post-conviction process

16DRAFT KVAA

Person convicted of a crime Argument – trial proceedings did not comply

with the law (not guilt or innocence) Appellate (higher) court reviews claimed

legal error(s)based upon the record made at trial

Court does not review new or additional testimony or evidence

Appellate court determines:◦ If there was sufficient evidence or◦ If trial was conducted properly

Who can appeal?

17DRAFT KVAA

Overview Kentucky criminal trial process in 10 EASY

steps

WRIT

11.42 HABEAS

CORPUS

Cert petition

Circuit Court

Direct Appeal

Discretionary Review

60.02District Court

18DRAFT KVAA

Kentucky Appellate Courts

Circuit Court

Kentucky Court of Appeals

Kentucky Supreme Court

19DRAFT KVAA

The Players Office of the Attorney General

◦ To appear before the appellate courts on felony appeals in state courts

◦ About 650—750 briefs a year (25 attorneys)◦ Other motions, hearings, filings as appropriate

Department of Public Advocacy◦ Handles appeals after trial is over (separate from

DPA trial group)◦ Very rarely private counsel

20DRAFT KVAA

Process1) Notice of Appeal is filed with trial court

2) Record is prepared and made available to Appellant’s attorney & for Appellee.

3) Record is made available to Appellate’s Attorney for Appellee.◦ Appellant’s Attorney reviews record, writes and files the

“Brief for Appellant”

4) Appellant may file a reply brief

Note: Specific time frame for each step but extensions are frequently requested and granted

21DRAFT KVAA

Process (cont.)

5. Case goes to the court for review of written arguments

6. After review the court will either◦ Order oral argument◦ Order no oral argument

If argument is granted ◦ counsel will “argue” (present the case) to the

court - 15 minutes per side◦ Judges will ask questions

No testimony is given / case decided “on the record”

22DRAFT KVAA

Opinions

• Court can take up to a year to issue an opinion.• Judgment is final after 30 days.• Possible results:

• Affirm• Reverse• Remand (In part)

• Does not have to be unanimous• Majority• Dissenting• Plurality

• Losing party may file a Petition for Rehearing or motion for Discretionary Review.

23DRAFT KVAA

Opinions from the Supreme Court become final on the 21st day after the date of its rendition unless a petition for rehearing has been timely filed.

Opinions from the Court of Appeals become final on the 31st day after the date of its rendition unless a petition for rehearing or motion for discretionary review has been filed.

CR 76.30(2).

Opinions

DRAFT KVAA 24

DIRECT APPEAL John Doe v. Commonwealth

Appellant v. Appellee

Matter of right appeal

Right to counsel

Less than 20 years to Kentucky Court of Appeals

Greater than 20 years to Kentucky Supreme Court

25DRAFT KVAA

Evidentiary Ruling (43.0%)

Sufficiency of the Evidence (35.1%)

Jury Instructions (29.5%) Sentence/Sentencing

Hearing (24.5%) Suppression of

Evidence/Statements (14.5%)

Prosecutorial Misconduct (12.7%)

Judicial Intrusion or Management (9.7%)

Jury Selection or Deliberation (7.9%)

Suppression of Identification/Line-up (6.2%)

Lesser Included Offenses/Merger (3.5%)

Speedy Trial (3.3%) Statutory Interpretation

(1.2%) Constitutionality of

Statute (1.0%)

Frequency of Issue on Appeal

26DRAFT KVAA

John Doe, Petitioner v. Commonwealth of Kentucky, Respondent

Opinion is rendered Petition for rehearing is sought by the losing

party in the appeal Petition goes to the court that issued the

opinion NOT a matter of right; must petition Right to appointed counsel

REHEARING

27DRAFT KVAA

DISCRETIONARY REVIEW John Doe, Petitioner v. Commonwealth of

Kentucky, Respondent Opinion is rendered Petition for discretionary review is sought by

the losing party in the appeal Petition is filed in a higher court than the

one issuing the opinion. NOT a matter of right; must petition Right to appointed counsel

28DRAFT KVAA

PETITION FOR CERTIORARI TO UNITED STATES SUPREME COURT

John Doe v. Kentucky Discretionary review Petition is either granted or denied (“Cert

was denied”) VERY VERY FEW are granted Briefing, oral argument, opinion issued

29DRAFT KVAA

POST-CONVICTION pursuant to RCr 11.42 John Doe v. Commonwealth Alleges constitutionally ineffective

assistance of defense counsel Movant must show both that

◦(1) performance was deficient◦(2) but for the deficient performance, the verdict would have been different

30DRAFT KVAA

POST-CONVICTION pursuant to RCr 11.42 Proceedings in front of the same judge

that presided over the trial Must raise issues that were not and could

not have been raised on direct appeal Right to appointed counsel No right to a hearing, but if hearing is

denied, may appeal denial If motion is denied, may appeal denial Commonwealth is now in the position of

defending the actions of the defense attorney!

31DRAFT KVAA

APPEAL FROM RCr 11.42 Denial of relief or denial of hearing may be

appealed to next highest court Eg., John Doe might appeal from the

affirmance of the denial of his 11.42 motion!

Briefing, oral arguments, opinion issued Petitions for rehearing and discretionary

review are possible

32DRAFT KVAA

POST-CONVICTION pursuant to CR 60.02 John Doe v. Commonwealth Seeks to set aside judgment of trial court

due to:◦ Mistake◦ Inadvertence◦ Surprise◦ Excusable neglect◦ Newly discovered evidence◦ Perjury◦ Fraud◦ Void judgment◦ Any other reason that is extraordinary in nature

33DRAFT KVAA

POST-CONVICTION pursuant to CR 60.02

Time limit of one year for most bases for motion

Otherwise, must be within a “reasonable time” Only those matters that WERE NOT or COULD

NOT HAVE BEEN raised on appeal or in RCr 11.42

May only be used to attack a sentence the defendant is currently serving

NO RIGHT to appointed counsel NO RIGHT to a hearing, but denial of hearing is

appealable

34DRAFT KVAA

POST-CONVICTION pursuant to CR 60.02 Appeal from denial of CR 60.02 hearing or

denial of motion to Kentucky Court of Appeals

DR from affirmance of denial of CR 60.02 to Kentucky Supreme Court

Briefing, arguments, opinion issued

35DRAFT KVAA

ORIGINAL ACTIONS John Doe, Petitioner vs. Circuit Judge, Nominal

Party and Commonwealth of Kentucky, Real Party in Interest

Unlike appeals and 11.42, 60.02, this action ORIGINATES in the appeals court

May arise at any point in a criminal case NOT an appeal or post-conviction remedy Petition for Writ of Prohibition (tell the judge

NOT to do X) or Petition for Writ of Mandamus (Tell the judge

he MUST do X)

36DRAFT KVAA

ORIGINAL ACTIONS Seeks immediate action by the appellate

court to intervene in a pending case “Take the judge up on a writ” Alleges that (1) immediate and irreparable

harm will occur and (2) that harm cannot be corrected on appeal

Briefing and oral argument Opinion granting or denying the writ Petition for rehearing/ discretionary review

37DRAFT KVAA

The Federal Court System United States District Court (in Kentucky, we

have the Eastern District and the Western District)

United States Court of Appeals (Circuit Court; we are in the Sixth Circuit)

United States Supreme Court

38DRAFT KVAA

PETITION FOR WRIT OF HABEAS CORPUS Filed in United States District Court in the

district where the prisoner is held John Doe vs. Warden Civil proceeding in Federal Court Must allege violations of US Constitution Briefing and hearings before a federal

judge No right to a hearing All state appeal and post-conviction

remedies must be “exhausted”

39DRAFT KVAA

PETITION FOR WRIT OF HABEAS CORPUS Petition for Writ of Habeas Corpus granted

or denied Appeal from denial of writ or from denial of

hearing Appeal to United States Court of Appeals for

the Sixth Circuit Briefing and oral arguments by both parties Opinion affirming, reversing, remanding Petition for re-hearing en banc

40DRAFT KVAA

10. Changes in Law 9. Public Opinion 8. Media Coverage 7. Victim

Notification 6. Victim Advocacy 5. Attorney

Turnover

4. Victim Involvement in the Case

3. The Lack of Finality

2. The Guilty Plea 1. The Timetable.

10 Reasons

41DRAFT KVAA

A Case Study: 1983

42DRAFT KVAA

DRAFT KVAA 43

Victim Assistance during the Appellate Process

(10) If a defendant seeks appellate review of a conviction and the Commonwealth is represented

by the Attorney General, the Attorney General shall make a reasonable effort to notify victims promptly

of the appeal, the status of the case, and the decision of the appellate court.

Effective: July 15, 2008

KRS. 421.500

Victim Notification Provided By The Office Of The Attorney General Notice of appeal when OAG receives the case Will provide briefs Notice of oral arguments Notice of opinion

Appellate Brochure - Printable for distribution to victims http://ag.ky.gov/criminal/appeals/Documents/criminalappealsbrochure.pdf

44DRAFT KVAA

Liaison between appellate attorney and victim throughout the appellate process

Court Accompaniment

Arrange for meeting with Attorney for the Commonwealth after the argument

Victim Assistance Provided by the Office of the Attorney General

45DRAFT KVAA

Online Resources

• COURTS.KY.GOV

• Court Of Justice Website: Provides a link to Chase School of Law webpage which supplies Kentucky appellate court briefs

• Kentucky Supreme Court also has ‘Live Stream’ of oral arguments

46DRAFT KVAA

Questions?

47DRAFT KVAA

Identify the criminal jurisdiction of the court Identify the participants Identify the rights of victims

Learning Objectives 2.6: Juvenile Court System

48DRAFT KVAA

Cases where offender is under 18 Philosophy

◦ Guided by “the best interest of the child” Types of offenders

◦ Status◦ Public◦ Youthful

Juvenile Court System - Jurisdiction

49DRAFT KVAA

Participants

Victim presence and rights

Juvenile Court

50DRAFT KVAA

51

Arraignment

Detention

Hearing

Informal

Adjustment

Pretrial

Conference

Adjudicatory Heari

ng

Disposition

al Heari

ng

Juvenile Court Process

DRAFT KVAA

To determine probable cause ◦ that the transferred offense was committed and◦ whether transfer to Circuit Court is appropriate

Factors to Consider

Disposition◦ If probated as a youthful offender◦ If sentenced as a youthful offender

Youthful Offender Hearing

52DRAFT KVAA

Questions ?

53DRAFT KVAA

This Instructor Manual was produced by the Justice and Public Safety Cabinet and Western Kentucky University under 2011VFGXK004, awarded by the Office for Victims of Crime, Office of Justice Programs, U.S. Department of Justice. The opinions, findings, and conclusions or recommendations expressed in this Instructor Manual are those of the contributors and do not necessarily represent the official position or policies of the U.S. Department of Justice.

DRAFT KVAA 54